Pledges
Lawsuits to enforce charitable pledges are rare, but they may be deemed enforceable contracts pursuant to state law, particularly in cases where the charitable organization has acted in reliance on the pledge (e.g., building construction begins in reliance on a major gift pledge). The Financial Accounting Standards Board (FASB) requires charitable pledges to be booked as a receivable on the audited financial statement. Donors with active pledges may be requested to confirm their commitment by the independent auditor. Private foundations cannot fulfill the personal pledges of a director, officer, founder, or staff. A donor advised fund can fulfill pledges of the donor or advisor following special rules as explained in IRS Notice 2017‐73.
Charitable Endowments
All states except Pennsylvania have adopted a version of the Uniform Prudent Management of Institutional Funds Act (UPMIFA) as the law governing endowments and other types of funds. Pursuant to UPMIFA and FASB an endowment is a gift designated as restricted by a donor, either in formal communication from the donor or in response to the marketing materials of the charitable organization. A gift that is not restricted as endowment by the donor but is treated as endowment by action of the board is deemed to be quasi‐endowment pursuant to FASB. Quasi‐endowments may be spent at any time by action of the board of directors.
A board of directors must approve policies for the prudent investment, spending, and fees applicable to its endowments. While private foundations are legally required to spend at least five percent of their assets each year (with some exceptions), a public charity endowment does not have a required spending rate. Pursuant to UPMIFA, it is the duty of the board of directors to spend or accumulate assets as it deems prudent, balancing the short‐term support from the endowment with a goal of generational equity.
Percentage Requirements
Percentage limitations imposed by state law on fundraising costs have been subject to federal and state scrutiny with courts holding that solicitors are not required to affirmatively disclose fundraising costs while making the solicitation. However, states may prosecute fraudulent practices in cases where donors and prospects are not accurately informed of how much of their gifts will be paid to the fundraising solicitors (Fishman et al. 2015).
Telemarketing
Many states through the attorney general or other office maintain “do not call” lists to prevent unwanted solicitation telephone calls. Some states exempt charitable organizations from the do not call list if the nonprofit uses its own full‐ or part‐time staff or volunteers to make the solicitation calls.
Federal Law Considerations
The Internal Revenue Code (IRC) permits two types of charitable organizations pursuant to IRC Section 501(c)(3): public benefit charities and private foundations. A charitable organization is presumed to be a private foundation unless it proves on its annual IRS 990 information return that it is a public benefit charity. The distinction is especially important since gifts to public charities provide greater tax benefits to donors. In addition, private foundations must comply with several very restrictive rules (see IRC Section 4940). These restrictions exist because a single donor (an individual, family, or corporation) can have significant control over the investments, grant‐making, and operating programs of the private foundation.
Types of Public Benefit Charities
The IRC allows for two types of public charities. One type must pass the “public support test,” which requires that one‐third of the total support of the organization be derived from a broad number of donors. Community foundations are an example of this type of public benefit charity. The second type qualifies as a public benefit charity without the public support test and includes churches, schools, hospitals, medical research organizations, state university foundations, and governmental units (see IRC Section 509(a)(1)).
Supporting Organizations
Supporting organizations are not required to satisfy the public support test. Supporting organizations are created to support the charitable mission of another public benefit charity. From a fundraising perspective, supporting organizations can be helpful in several special circumstances such as accepting specific assets that may carry potential liability (e.g., real estate), accepting large gifts to avoid violation of the public support test by the supported organization, or as an “incubator” for a charitable program that may ultimately evolve into a public benefit charity.
Member Benefit Organizations
Qualified member benefit organizations include civic leagues, business leagues, chambers of commerce, real estate boards, social and recreational clubs, fraternal benefit societies or associations, and credit unions. A member benefit organization is not taxed, but gifts to these organizations generally do not qualify the donor for an income tax charitable deduction. Receipts for gifts to these organizations must disclose that the donor will not qualify for an income tax charitable deduction. However, there are a few exceptions for certain member benefit organizations. The income tax deduction is available for gifts to veterans' organizations, volunteer fire departments, fraternal societies for charitable purposes, and cemetery companies (see IRC Section 170(c)(3)‐(5)).
Some member benefit organizations partner with separately incorporated public benefit charities that serve as a charitable “foundation” to accept tax deductible gifts for qualified charitable purposes, for example, a fraternal organization using a foundation to accept gifts for scholarships. (See IRS Publication 4221, Compliance Guide for Tax‐Exempt Organizations Other than 501(c)(3) Public Charities and Private Foundations.)
Unrelated Business Taxable Income and Fundraising
Tax‐exempt organizations do not normally pay income tax on fundraising or other revenue. However, revenue generated by the organization from a trade or business that is regularly carried on and not substantially related to the charitable mission will be taxed as unrelated business income (UBTI).
Exceptions to UBTI include revenue generated from qualified sponsorship payments so long as the donor recognition provided to sponsors does not become advertising. Many charitable organizations utilize sponsorships to meet resource development goals. Advertising that does not qualify as sponsor recognition includes endorsements, an inducement to purchase, and/or messages containing qualitative or comparative language, price information or other indications of savings or value. Other exceptions to UBTI include passive investment income on a charitable endowment, rental on real estate, and bingo game revenue. Other charity gaming activity may be taxed. (See IRS Publication 598, Tax on Unrelated Business Income of Exempt Organizations.)
Donor Privacy and Confidentiality
Federal and state privacy laws require the protection of donor privacy and confidentiality. State laws that allow access to public records may apply to donor records of organizations that receive tax revenue. While the IRS 990 form is available to the public, donor names in Schedule B or elsewhere in the 990 are not public information and may be redacted before sharing with the public.
Some public university foundation records have been deemed accessible by the public pursuant to state law (see the website of the Council for Advancement and Support of Education). Other laws that may impact donor records include the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA).
