Starting A Charity? 8 Differences Between Public Charities and Private Foundations To Help You Decide

Karim: Thank you. Thank you, Toby. It’s great to be here.

Toby: We’re going to be talking about starting a charity. But more importantly, the eight differences that are really obvious between public charities and private foundations help you make a choice as to what’s best for you. I’m going to hand this to Karim and he may offer me color commentary Karim, but that’s about it. I’m going to hand this off to you because you’re the expert.

Karim: Alright. We always expect that from you, Toby. You always ask great questions. Please feel free to chime in.

Toby: Here’s an easy one. Karim, you worked for the IRS as an attorney?

Karim: Yes.

Toby: Which division?

Karim: I was in the tax exempt in the government entities division, basically.

Toby: That covers charities, right?

Karim: Exactly. Reviewing any type of non profit application for 501(c)(3).

Toby: Alright, what better lawyer to listen to than the one that actually worked for the government agency that you’re dealing with. I always crack up because there’s so many people out there giving bad advice on the internet. It’s like just, find one that works for the actual organization that you’re dealing with. Usually they know the answers because they were the ones dealing with it. But anyway, let me get out of your hair. I’m going to hand it to you.

Karim: Thank you, Toby. Hello, my name is Karim Hanafy. And as Toby had mentioned to you before, I was working with the IRS. I was in the tax-exempt division, reviewing applications for exemptions for public charities and private foundations. I worked there for about five years and then I’ve been in private practice where I’ve been working overall about 25 years of nonprofit experience.

I’ve been with Anderson Business Advisors for about three and a half years, where I’ve set up over a thousand nonprofits here with Anderson. We’ve set up public charities. We’ve set up private foundations, and all of them have been approved as a 501(c)(3).

A little background is that we did do a video. It was covering the nine reasons why you want to set up a family foundation and it was intended to let everyone know that they can basically set up a family foundation as a public charity or private foundation.

But after watching a lot of clients were calling and inquiring about private foundations, and of course, we’re never going to discourage them. We just want them to understand the differences between public charities and private foundations so they can make the decision about which one they want to go with. You can be a 501(c)(3) and still be a public charity or private foundation. It’s all about the activities that you’re going to be doing.

We did another video, Toby and I, about the 10 most common types of nonprofits covering from humanitarian relief to education and affordable housing and animal rescue and international activities, please check that out as well. As I mentioned before, you can do it within a public charity or private foundation qualifying as a 501(c)(3) so you can get the contributions and they’ll be tax deductible.

But of course we want to do a diagnostic just to kind of run through what are the reasons why you want to set it up and why would you want to be at say a private foundation versus a public charity? That’s what we’re going to cover today.

Toby: Let’s dive into it because there is a difference between a public charity and a private foundation. I know you’re going to go over all those differences. But from a 10,000 foot view, what’s the big difference between them?

Karim: Well, the biggest difference deals with two, the compliance and the restrictions as well. The compliance is depending on how you’re going to be making grants, how you’re going to be doing the funding and making donations. You have certain paperwork that has to be done, certain reporting requirements that have to be done. In addition to that, all that has to be disclosed within the tax returns for your 990-PF. But in addition to that, there are also prohibited transactions, certain transactions you cannot do within a private foundation, which you may be able to do within a public charity. These are the two big differences.

For many of the clients that come to us, they tell us, listen, I want to set up a private foundation. We always ask them what are the reasons? Again, as we’ve said, we’ve worked with a thousand clients so  we kind of know the reasons why they give us many different reasons.  I’m just kind of giving a summary of the reasons why. We kind of go through them, weigh these factors.

As I said before, if you’re still interested in a private foundation, we’ll work with you. We’ll make sure that you get it done. You get it done for you and you get it done correctly.

Number one is the tax benefits. Many of them are doing it for the tax benefits. As between the two, public charity has better tax benefits. Cash contributions are tax deductible, whether it’s a public charity or a private foundation, but you get better benefits with any public charity. Up to 60% of your AGI for cash contributions to a public charity versus 30% of your adjusted gross income to a private foundation.

If you’re donating noncash, say appreciated assets, where a lot of clients don’t want to pay taxes on this, they’d rather get the tax deduction. You can avoid paying taxes and get a tax deduction for donating stuff like stocks, crypto, real estate that have gone up in value. You can deduct up to 30% of your adjusted gross income to a public charity versus 20% of your adjusted gross income to a private foundation. Of course, if you can’t get the deductions in this year, they do carry forward.

Toby: Let me just interrupt you there. If somebody is not familiar with adjusted gross income, that’s your income minus certain contributions to things, certain expenses that you have, which adjusts your income. When you hear somebody say AGI, look on your tax return for the little line that says your adjusted gross income is this. Then you can take an additional deduction, what’s called Schedule A deductions, but charity falls right into there, that adjusts that income downward.

If your AGI is $100,000, you can give $60,000 directly to a public charity, including your own, and your taxable income would be reduced to $40,000, which is going to give you huge tax savings. From a private foundation standpoint, that amount just gets cut in half. You could still give $60,000 away, but you’d only get a deduction this year for the $30,000 and then the other 30 would carry forward in the next year. The public charity, you can write more off.

What Karim just said about the appreciated assets, if you don’t want to give cash, you don’t want to have a taxable event. You have some stock that’s gone way up in value, donate the stock. You don’t have the tax hit on that and you still get a very sizable deduction.

Again, most people aren’t giving away more than 10% or 15% of their income. But if you did, you got a burr in your katush and you said hey, I want to give away 20% this year. You’re always going to be able to do it. You’ll get to write that off no matter whether it’s public charity or private foundation.

Karim: Another reason is a lot of clients talk about privacy. The assumption and it’s a misconception that if you have a private foundation, then it is private and a public charity, it is public. That isn’t the case. Both of them have reporting requirements. There’s no difference in terms of privacy. Both public charities and private foundations must disclose a copy of their 1023 application that was submitted to the IRS, which is your application to get your 501(c)(3) to get the exemption.

You also have to disclose the names of the officers and directors. They’re in the application. You have to include articles of incorporation, your bylaws, any supplemental information that was included in the application. Sometimes the IRS will send you requesting additional information. Whatever the information is that they’re requesting and you respond to them, you also have to make that public. Then of course your tax returns as well for your 990 returns in the past three years.

Now there are options where you can minimize disclosure of board members. Say, set it up in a different state or with Anderson, we have a Nevada address and many of them will use our company address as well. At least if those names are disclosed, perhaps it’s going to be at a different address in a different location. It may be a little bit more difficult to be able to track it. But nevertheless, if someone comes to the organization and requests a copy of this information, you have to disclose it. It’s required.

Another reason why is, many want to include the name family foundation. Corporation of course requires ink after the name in me states. Some assume that only a private foundation can have  foundation in the name, which isn’t the case. You can always include a family foundation. Again, we have hundreds of clients who are set up as public charities and they’ve included the word family foundation as part of its name. There’s nothing that prevents you from doing.

Another reason is family members. They are what you typically see, and it’s common to see, private foundations are usually set up by a wealthy family and they want to include their families to be part of it to create that family legacy, which is extremely common within Anderson. Many of our clients want to set up a charity and they want their family members to be involved. They want to bring their kids in at an early age to get them started.

But you can do this, whether it’s within a public charity or a private foundation. In fact, they can have control as a board when it comes to management, when it comes to investments, when it comes to distributions and grants. You read online about the differences and many say a private foundation has family members and a public charity has a diverse board and these are recommended practices, but it’s not required.

In fact, within Anderson, again, I’m basing it on the hundreds and hundreds and hundreds of applications that we’ve prepared, within a public charity. You can have a permanent director. You can have one director if the state allows it. Done this hundreds of times. Every application has been approved and not once did the IRS come back to us telling us you need to expand the board to include different board members who aren’t part of the same family. We’ve never got a complaint. We never had an audit with this.

As long as you’re operating as a fiduciary, operating in the best interest of the nonprofit, and as long as you’re conducting charitable purposes, furthering the charitable purpose of the nonprofit, you can have family members within it to control all of these things from the board, management, investments, and distributions. Again, just as long as you are serving as a fiduciary, operating in the best interest.

Another is the spending requirement. When I say spending requirements, it’s how much the non profit has to be spending to further the charitable purposes and activities. Many are familiar with that 5% payout requirement within a private foundation. Private foundation has to spend at least 5% of its investment assets for charitable activities. It must be given to public charities. It may be given to private foundations, but you have to follow certain procedures, which I’m going to explain.

Then also you can do it to pay reasonable and ordinary expenses, including salaries, including salary for family members if you want to pay them as well. Public charity does not have the same requirement, but your organizations, and we always tell them, we recommend that you follow something similar to what private foundations do. You don’t have to spend 5%, but do some spending, do something, conduct charitable activities, whatever it’s going to be the cost if you want to make distributions, you want to make grants, you want to do program activities. Do all of these things within the public charity, but you’re not required to do it like a private foundation is.

Next is dealing with donations, donating and making grants to organizations and individuals. Say you’re going to be supporting low-income individuals or other organizations that support low-income individuals. Even though it’s charitable and the things that you’re doing are charitable, you may be subject to reporting requirements within a private foundation.

Public charity has more flexibility. Public charities, generally speaking, tend to conduct their own activities, whereas private foundations are just strictly making grants to other organizations that do these activities. But a public charity, in addition to that, they can do their own activities and or they can make a grant as well.

Now, if you’re going to be making grants, you can do it to another 501(c)(3). If you’re doing your own activities, you can also make grants to a for profit organization. You can also do it to international organizations if these expenses further a charitable purpose. Now you always want to document these expenses and activities in case of an audit, but you’re not required to attach specific individual items.

You may have to disclose who you’ve been funding and supporting Perhaps not individuals but organizations, but you don’t have the same reporting requirements that you would have as you would within a private foundation. Within a private foundation if you make a grant to a for-profit, a private foundation or international organization, now I’m not talking about public charities here. I’m talking about private foundations, talking about for-profits, talking about international organizations, these are different, you have to exercise “expenditure responsibilities” or it’s going to be treated as a taxable expenditure.

What is exercise expenditure responsibilities? You can see for a lot of our clients we’re only talking about two and three board members. They just don’t have the personnel. They don’t have the bandwidth to be able to do all of the work in the reporting.

Within a private foundation, you have to inquire, you have to do a pre-grant inquiry if you’re dealing with non 501(c)(3)s, if you’re dealing with private foundations and foreign organizations. You have to inquire before and make the determination that the recipient or grantee is going to be the one that will be receiving the funding and will be using it for the intended charitable purpose. You need a grant agreement. You need to obtain full and complete reports from the grantee on how the funds were spent and then you have to make a full and detailed report with respect to the expenditures to the IRS on the 990-PF.

As I’ve emphasized here, it’s easy to fail because if you don’t do these things, you fail and it’s going to be treated as a taxable expenditure, which is definitely the foundations don’t want to do. You’re spending something that’s furthering a charitable purpose, and it’s still taxable. This creates a burden on the organization and substantial compliance with these rules is not sufficient. Again, public charities, you’re not bound by those same rules. You don’t have to have this information. It won’t be taxable as long as you’re furthering your charitable purpose.

Toby: How is it taxable, Karim?

Karim: Well, it’s based on the expenses and it’s an excise tax. The excise tax would be you would have to report it on a separate return for the amount that you spend. There would be an excise tax for that.

Toby: Do you know the tax rates on those or are those like corporate rates?

Karim: It can vary for the certain types, anywhere from 21% to having me 25%, and if you don’t pay it back, if you don’t fix it, then it can be an additional amount. In some cases with prohibited transactions, it’s up to 200% of the amount. Again, it’s a burden. Mostly, it’s an additional return. That’s where it kind of creates the problems too. You’re not just filling out this 990 PF, but you’re also filling out a separate tax return as well.

Karim: International activities. We do have a lot of clients who are international clients and want to give back to their communities. Get back to villages, for example. They want to do international work and all of it is good. The work that they’re doing is charitable, but unfortunately, with private foundations, there are certain compliance requirements.

Again, public charities, you have the flexibility. You can make grants to a non U.S. entity if the grant furthers a charitable purpose and is used for an intended charitable purpose. Now, of course, the charity has to maintain discretion and control to ensure the funds are used appropriately. But you can use a public charity, get the tax deduction into it, and then make these distributions and grants to the foreign entities. You just have to maintain discretion and control. That’s the extent of what the requirement is for public charities.

But for private foundations, again, you have to strictly comply. You can make a grant to a non-US. entity, but again, you have to either exercise expenditure responsibility, or it’s going to be a taxable expenditure or there’s an alternative with international organizations, which is different from these for-profit entities.

For non-US entities, there’s an additional requirement, an additional alternative, which is obtaining an equivalency determination when making a grant to an international organization. The equivalency determination is basically when you make a grant, you may obtain from, this is from the revenue procedure, “a qualified tax practitioner.”

It can be an attorney, it could be a CPA, to be a tax attorney getting something from them from a qualified tax practitioner that the organization would qualify for exemption is a 501(c)(3). But I can tell you this from working in this area, and we have this issue even with US organizations that are applying for exemption, you have to have a dissolution clause that says upon dissolution, the assets will go to another 501(c)(3) organization or to another charitable organization.

Typically you don’t see a dissolution clause when it comes to these NGOs that are set up internationally for an organization. They have to have something like that so the information needs to get revised to have it. In addition, it’s harder to obtain all of the documents for a foreign international organization. It’s a lot easier getting them here in the US because you can go to the Secretary of State website. You don’t have that same thing when it comes to foreign organizations. It’s a little bit more of a burden that you have and you have to pay someone like a qualified tax practitioner to get the equivalency determination.

Now, if instead you choose to do the expenditure responsibility. It still is a lot of work to do that. Again, there’s more of a burden when it comes to private foundations versus public charities.

Fundraising, this is the one where the private foundation is better. Why? Because it’s funded by few members. Usually it’s just one family and they’re not interested in fundraising. They’re not required to fundraise.

Whereas public charities, you need to be getting public support. This is really where the difference is between private and public that term. It’s not about privacy. It’s because one is privately funded. The other one is publicly funded. It may require fundraising, but even with some of  my clients, we tell them you have six years to raise this money and during this period of time, you can be a public charity and you get all those tax benefits.

You don’t have those restrictions that you have so you have six years to do it. Worst case scenario after six years, you’d be reclassified as a private foundation, but you don’t lose all the benefits that you had from before. It doesn’t apply retroactively. It only applies effectively moving forward.

This is the only thing that works against you if you want to set up a public charity. But as I tell the clients, if you have one that favors a private foundation, and seven that favors a public charity, then I’m going to go with the seven over this one for sure. Because again, you have six years and you can get those tax benefits and less restrictions for those six years as you’re operating as a public charity.

You never know, you may be able to get the funding. You may get a grant, you may get a private foundation grant, a government grant from other charities, from donor-advised funds, or you may have lots of friends and family who want to donate to your organization. You just never know what’s going to happen over the next six years so set it up as a public charity for the time being.

The next is solicitation of donations. When it comes to funding, funding from private foundations, from corporate foundations, from donor advised funds, and community foundations, they almost exclusively, as I’m saying here, and I emphasize almost exclusively. Sometimes they will give to private foundations like the Gates Foundation would, but they have over 1000 employees.

For the smaller foundations that are just run by family members, the private foundation, they’re almost always going to give to public charities because it’s easier to do without having to exercise expenditure responsibility and they can meet that 5% payout. They would rather give to public charities because it’s easier than private foundation and don’t advise funds will never give to public to private foundations.

Toby: Karim, the Gates Foundation, that’s actually a private operating foundation. It’s not quite the same thing, is it?

Karim: I believe they’re a private foundation because they don’t do their operations. Usually they’re investing or making program related investments or giving funding to other organizations or entities.

Toby: I know they give a ton. I mean, for some reason, I have it stuck in my head that they were operating.

Karim: It’s possible they may be, but I know when they were set up, they were not, they were non operating and most of the foundations typically don’t do their own activities and operations. They’re usually just funding other organizations.

Toby: If somebody is confused by what I said, I have a feeling that you’re going to cover private operating foundations before we’re done.

Karim: Yes, I will. Again, when it comes to funders, they’re going to give and corporate foundations, think of Starbucks, the Walmarts of this world, any of these Fortune 500 companies, they have a foundation usually for goodwill that they want to give to other charities, and they’re almost always going to give them to public charities as well. In fact, they have these requirements stipulations when it comes to making these grants. It’s going to be for public charities.

Now for the filing requirements, like everything else, it’s pretty much easier with public charities. You have easier forms when it comes to public charities. There may be the 990-N, which takes all of about two to three minutes to file and complete. There’s no financial disclosures with it.

If you’re generally receiving less than $50,000, then you can file that for 990-EZ and the 990s, a little bit more reporting and financial requirements, but they’re not as difficult as the 990-PF. There’s always a reporting requirement, a filing requirement, public charities and private foundations must always file annually, but there’s no late filing fees for the 990-N, whereas there is with the private foundations.

You have to do these within three years. It’s important to do that or your exemption will be revoked. All those apply, filing requirements apply, but the 990-PF, even if you have $1, you still have to fill out the 990-PF. There’s not a variation of it and it can be quite difficult to do to prepare that return, especially for such little activities within the private foundation. Now for prohibited transactions, and a lot of times this does become an issue.

Assume an example here where the founder owns real estate and he wants to lease it and he can lease it to the public for $2000 and hundreds of people are interested. But instead of doing so, he decides to lease it to the nonprofit for $200 and we’re calling it the private foundation is what it is.

Because the founder is considered to be a disqualified person. This is a terminology that the IRS uses for determining whether they’re self-dealing. Founders, officers, directors, substantial donors, any sort of donors, anyone who has this sort of control within the foundation, they’re considered to be disqualified persons.

Because of that, there are transactions that are automatically prohibited. One of them is leasing the property to the foundation. Even if they’re doing it at a 90% discount, it’s prohibited. It’s going to be taxable. This is where it’s going to be up to potentially a 200% tax that’s going to be imposed on the founder. They have to correct it. They have to fix it. They have to give the money back. Otherwise, it’s going to be that excise tax.  The property, you can only make it available for free to the private foundation. That’s the only option. You cannot charge for it.

Toby: I remember, I think it was the IRS that said you couldn’t sell a million dollar building for a dollar to a private foundation, which you’re a disqualified party being that [inaudible 00:25:15].

Karim: It’s just unbelievable because if you’re a private foundation that needs this, you need to have space to be able to operate and your other options are going to be $2000 for each place and the founder is offering it to you for $200, that right there is a great deal to both and yet it’s still prohibited with that.

Toby: They’re just saying, hey, we’re going to prohibit it. We’re not saying a great deal works. It just means unless you’re going to give it away, we’re going to assume that you’re trying something here.

Karim: Yeah, that’s the assumption. Exactly. There are other common scenarios of which they could be prohibited or you’re going to see that there is a difference between the public charities and private foundations. I gave you the example just now dealing with a 90% discount. It’s permissible within a public charity. You can do it if it’s reasonable, falling fair market value or below. You’re making it favorable to the public charity.

Goods and services, home office use as an example. It’s common. You see this with businesses when they’re doing the 280A, for example, using it to have meetings within the office. You’re not allowed to do that and charge the private foundation.

Now it’s permissible with public charities if it’s ordinary, if it’s reasonable, if it’s necessary, and you follow the liberal production standard.

Toby: Hey Karim, can you still reimburse expenses if you’re, if it’s a private foundation?

Karim: Yeah, you can do that.

Toby: You can’t do the 280A, but you could still do an office in your home or something like that.

Karim: You can do reimbursements. You can do that. Loans, of course, are prohibited. As I mentioned here on the right, even if the interest rate is 25%, you cannot make a loan. You cannot give a loan from the private foundation to this disqualified person. Again, it’s per se prohibited with something like that.

Toby: If you want money, you’re going to get paid.  Yeah, right. You’re gonna have to earn it. You gotta earn it.

Karim: These are other scenarios that come up and we’ve covered them from international grant-making to grants and donations to non 501(c)(3). Different rules, the permissible within public charities, private foundations, there’s more reporting requirements. Finally, the scholarships, you have to get it in writing in advance.

If you do it later on, you have to submit a private letter ruling, which can cost roughly about $10,000 at this point to submit a private letter ruling to let them know that you want to do scholarships.

Toby: Can I ask you a quick question on the for-profit subsidiary? Because isn’t that the situation with Rolex right now? I believe that they’re owned by a charity and it’s a for-profit institution. But they are required to pay out a certain percentage. I want to say it’s like 90% or something like that. They have to pay out of whatever their profit is every year because it’s because the charity owns it. Am I accurate?

Karim: There’s Newman as well. Paul Newman had it with Newman’s Own Foundation where he had something similar and there were certain requirements with it. Yes, it had to be where all the profits were being distributed and being given to the foundation.

But in addition to that, it did require that they had to have that a majority of the board members had to be unrelated family members as well, certain conditions that were written into the rules to allow for it to happen.

In most scenarios, if you follow these requirements, certainly it could qualify, but it doesn’t happen that often. These were specific rules that were written for the benefit of Newman’s Own foundation. I think that was the name of Newman’s Own for Paul Newman.

Again, with nonprofits, you have the flexibility to be able to have it with a for profit subsidiary. Whereas with the private foundations, if it is considered to be an excess business holding, you have to get rid of it. It can’t stay within the private foundation. Again, you don’t have the same flexibility.

Kind of summarizing it, kind of just giving a brief overview. It’s easier for public charities, for sure. Except for fundraising, which is the one exception. Public charities have less compliance, less reporting, less restrictions. They have better tax benefits. They have better funding opportunities of getting the donations and the better, more flexibility to make grants to any organization that furthers a charitable cause.

Whereas private foundations, you do need the grant agreements, you need documentation, you have to follow up to ensure it’s being used for that intended charitable purpose. Of course you have your tax filing requirements. Again, and we’ve said it before, if you still want to do a private foundation, absolutely, we’d be willing to work with you, make sure you get it set up, make sure it’s done correctly and work with you to make sure you comply. But as an alternative, a private operating foundation may be a solution.

As you mentioned before about the private operating foundation, the one thing is you are operating, you’re conducting program activities. There have been examples of museums that are considered to be a private operating foundation. That’s an example because they’re doing an operation. They’re not funding other organizations. They’re actually doing the activities themselves and

Toby: To try to help people understand it, the easiest way to think about it is that public charity is definitely doing something and they have the public support test that you have to deal with. But you get all these other flexibility benefits, a larger deduction. Private foundations, the way you always think about it is they have to give away 5% of their assets every year. But if you don’t want to give away 5% of your assets, then do something. Actually have it doing something. Which case now it looks a lot like a public charity, which begs the question, just be a public charity, but could be a private operating if you don’t want to do that 5% giveaway every year.

Karim: You get the same tax benefits with it. But you have to be conducting program activities, and that’s essentially that 5%. That’s where the 5% payout would come in, but you still have to make sure that you’re doing roughly the equivalent to that.

You have prohibited transactions still and you still have to follow the 990-PF. It kind of goes through all these pages to make the determination as to whether or not you are meeting that test that they have there which can be a little bit complicated, but yet still easy to meet. It’s just kind of complicated how it’s going to be reported.

Again, the public charity doesn’t have those same requirements with it. Just want to make sure and we always told the clients, just make sure you’re doing activities, doing something, you’re spending something in furtherance of the charitable purpose of what the public charity does or the private foundation, even for that matter. But again, this is an alternative. If you’re still set and wanting to do a private foundation, perhaps a private operating foundation would be an option.

That’s pretty much it. That covers everything. Thank you all for watching and for listening. Please contact me if you have any questions, you can contact our department nonprofits. It will reach all of us within the department. We’re about four people that do a fantastic job within the department if I say so myself.

Toby: Karim, great job. Again, I’ll put the link up in the show notes. Guys, if you think somebody might benefit from this, share it. If you could like and subscribe to the channel, it helps get our algorithms out there and Google likes it and other people like it a lot better when this type of stuff gets shown up as something that they may want to watch.

If you know anybody that’s thinking of doing charitable organizations. This is the type of information they need to know before they start because it will have a major impact on how they operate. Karim, thank you so much, sir.

Karim: Thank you.

Thank you for listening to today’s podcast. Show notes for links to everything mentioned in this episode can be found on our website at andersonadvisers.com/podcast. Be sure you subscribe to our podcast and if you are already a subscriber please provide us a review of what you thought of this episode.