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Q&A #85 – Are committees required to keep meeting minutes?
Check your state’s nonprofit corporation statute to be sure, but these laws generally require that Board committees keep minutes of their meetings, or at least records of all official actions taken by these committees. Further, the Form 990 inquires whether organizations contemporaneously document meetings held, or written actions taken by, committees authorized to act on behalf of the Board (see Part VI, Section A, Line 8b). Therefore, it is highly recommended, and may be required by applicable state law, to keep minutes of committee meetings.
Q&A #84 – Can a charitable assistance program be limited to people in a single neighborhood?
It is a long-recognized principle that individuals who receive assistance from a 501(c)(3) charitable organization must be part of a “charitable class” that is sufficiently large or indefinite, such that the assistance program benefits the community as a whole, rather than small, pre-selected group of people. See IRS Pub. 3833. Limiting benefits to residents of a single neighborhood would probably satisfy this requirement so long as this restriction doesn’t function to benefit a blatantly small or self-interested group of people, although the line can be difficult to discern.
Q&A #83 – What happens if my organization files Form 1023-EZ and then exceeds $50,000 in revenue?
The decision whether to use the Form 1023-EZ instead of the full Form 1023 is a one-time choice, so it is important to choose wisely. There is neither a requirement nor an opportunity to supplement the Form 1023-EZ later with a full Form 1023 if your organization exceeds $50,000 in revenue in one of the first three years. In the worst-case scenario, it is possible the IRS could audit the organization and retroactively revoke 501(c)(3) status if your initial financial projections are deemed to be a “misstatement of material information.” However, this result is unlikely if you can show that your financial projections were reasonable and made in good faith at the time the application was submitted.
Q&A #82 – Should a church file a Form 1023 for recognition of 501(c)(3) status?
It is true that churches, synagogues, temples, mosques, and other places of religious worship are not required to file a Form 1023 with the IRS to be considered tax-exempt under section 501(c)(3) of the Internal Revenue Code, unlike virtually all other types of nonprofit organizations. However, there are good reasons to consider filing a Form 1023 anyway to receive official documentation in the form of an IRS determination letter of 501(c)(3) status.
Q&A #81 – Must a Form 1099 be issued for a need-based grant made to an individual?
In general, amounts granted to an individual solely out of the payor’s “detached and disinterested generosity” are treated as “gifts” that are excluded from tax under section 102 of the Internal Revenue Code. The IRS has confirmed that a payment made by a charity to an individual that responds to the individual's needs (in order words, is motivated by charitable intent rather than any moral or legal duty) qualifies for this exclusion, and consequently is not subject to Form 1099 reporting. See Revenue Ruling 2003-12.
Q&A #80 – What’s the difference between a motion and a resolution?
As with many matters of nonprofit governance, opinions vary as to the meaning of terms like “motion” and “resolution,” which are sometimes perceived to be similar. While there is no single universal set of definitions, the term “motion” is generally understood to mean the proposal of a Board action, while a “resolution” refers to a type of formal Board action that is used when careful written language is desired.
Q&A #79 – Can an expense reimbursement policy allow small purchases to be reimbursed without receipts?
It is possible to allow exceptions to the requirement to provide receipts for certain small purchases as part of a clear and detailed expense reimbursement policy for all employees (full and part-time staff and senior management) that is equally disseminated and enforced. However, there should be no blanket exceptions based on a specific dollar amount threshold. Rather, you could include an exception that will allow expense reimbursements to be processed in situations where receipts for small purchases are very difficult to obtain.
Q&A #78 – What’s the difference between a private operating foundation and a private non-operating foundation?
Private operating foundations are a special type of private foundation that generally devote most of their earnings and assets to running charitable programs directly, in contrast to standard private foundations that mainly make grants (technically referred to as “private non-operating foundations”). Private operating foundations are generally subject to more favorable rules than other types of private foundations, so this status is usually preferable if your organization qualifies.
Q&A #77 – Should every contract have indemnification language?
Whether indemnification language is desirable and appropriate depends on the specifics of each contract as well as each party’s bargaining leverage and tolerance for risk. It is important to think carefully about the risks that could arise from each contract and pay close attention to how the language is phrased. Depending on the circumstances, indemnification language may not be necessary, and, if drafted improperly, could cause more harm than good.
Q&A #76 – Is Form 990, Schedule B donor information required with my organization’s state charitable solicitation registrations?
The answer should be no, for now. This past summer, the Supreme Court invalidated California’s requirement to include unredacted Form 990, Schedule B donor information as part of its charitable solicitation registration law in Americans for Prosperity Foundation v. Bonta, No. 19-251 (July 1, 2021). Prior to this decision, California was one of a handful of states that required this donor information, along with New York, New Jersey, and Hawaii. All except for Hawaii have since explicitly suspended this requirement in response to Bonta, and Hawaii has not yet clarified its position.
Q&A #75 – Are there advantages to 501(c)(4) status compared to 501(c)(6) status?
Both 501(c)(4) and 501(c)(6) organizations are permitted to engage in unlimited amounts of lobbying so long as the lobbying is consistent with the organization’s tax-exempt purposes. The main advantage of 501(c)(4) status as compared to 501(c)(6) status is that there is more flexibility with regard to the organization’s governance structure. However, there are some downsides that should also be considered.
Q&A #74 – How does simple majority voting differ from other types of Board voting?
A “simple majority” generally means more than half of the votes cast, but can also refer to approval by more than half of the Directors present at the meeting (a subtle but meaningful distinction). This is the most common type of Board voting, and many nonprofit organizations use simple majority voting as the default for most Board decisions in their Bylaws. A key distinguishing feature of simple majority voting is that it only counts votes cast or Directors present, in contrast with decisions that require approval of a majority or more of the entire Board of Directors (regardless of whether some Board members abstain or are absent), sometimes called “absolute majority” voting.
Q&A #73 – What provisions should be included in an MOU for a joint program?
The first step is to decide whether a Memorandum of Understanding (MOU) or formal contract (agreement) is most appropriate for your situation. An MOU is a good choice if the parties are still in the exploratory phase of the relationship, since MOUs should be used as non-binding documents that lay out the framework for a more formal agreement that the parties intend to sign later. The terms of an MOU vary widely depending on the relationship and project, but there are some provisions that are typically found in an MOU of this type.
Q&A #72 – What is required to meet the 10% facts and circumstances public support test?
It is common for 501(c)(3) public charities to rely on the 10% facts and circumstances test as an alternative to maintaining 33 1/3% public support that is generally required under Internal Revenue Code sections 509(a)(1) and 170(b)(1)(A)(vi). However, there are certain requirements that must be satisfied, and the Form 990, Schedule A requires organizations to explain how they meet these requirements.
Q&A #71 – What’s the difference between Model A and Model C fiscal sponsorship?
There are many different models of fiscal sponsorship. Model A and Model C are the most common. In Model A, the charitable project is carried out directly by the fiscal sponsor and the people who operate the project are employees or volunteers of the fiscal sponsor. The closely related Model B is very similar, except the people who operate the project are independent contractors of the fiscal sponsor rather than employees. In contrast, in Model C the fiscal sponsor has a more limited management role that is generally limited to receiving and disbursing grants in furtherance of the charitable project.