Tax Issues Facing Exempt Organizations

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1 Tax Issues Facing Exempt Organizations

2 TODAY S AGENDA AND OBJECTIVES CHNA Timeline Refresher Unrelated Business Income Joint Ventures State Update 2

3 CHNA TIMING Effective for tax years beginning after March 23, 2012 Conduct at least once every 3 years Must adopt implementation strategy in same tax year as CNHA Transition year example: a calendar year hospital completes its 1 st CHNA in 2013, hospital has until May 15, 2014 to adopt IS, but next CHNA and IS must be both be done by end of

4 COMPLIANCE PROJECT REPORT Underreporting of UBI: Lack of profit motive (using non-ubi losses to offset UBI) Improper expense allocation Errors in calculating or substantiating NOLs Commonly missed UBI: Fitness centers, advertising, facility rentals Executive Compensation: Comparability data 4

5 UNRELATED BUSINESS INCOME Eliminate a source of unfair competition by placing the unrelated business activities of an EO on the same tax basis as the nonexempt business endeavors with which they compete. Form 990-T required if gross income > $1,000 (gross receipts less cost of goods sold) Tax calculated using graduated corporate rates which start at 15% May also trigger state taxation (ME, NH, VT, MA, etc.) 5

6 UNRELATED BUSINESS INCOME FORM 990-T Statute of limitations generally 3 years Form 990 may start the statute of limitations if revenue disclosed in enough detail to put the IRS on notice as to the nature of the activity and the gross receipts Filing a 990-T with zeroes most likely will not start the statutes running, IRS may not process it 6

7 UNRELATED BUSINESS INCOME An organization may be subject to tax if it is carrying on an activity that is: Trade or business Regularly carried on Not Substantially Related to Exempt Purpose All three must be met before the activity is subject to tax. 7

8 UNRELATED BUSINESS INCOME TRADE OR BUSINESS The term "trade or business" includes any activity which is carried on for the production of income from the sale of goods or the performance of services. Must implicitly attach a profit motive, but profitability is not a prerequisite. 8

9 UNRELATED BUSINESS INCOME REGULARLY CARRIED ON A trade or business ordinarily is deemed regularly carried on if it manifests a frequency and continuity and is pursued in a commercial manner. Frequent and continuous not defined - based on the facts and circumstances of each activity. 9

10 UNRELATED BUSINESS INCOME SUBSTANTIALLY RELATED An activity is considered not substantially related if it does not contribute importantly to accomplishing the exempt purpose of the EO Production of funds not considered related Facts and circumstances - size and extent of the activities involved must be considered in relation to the nature and extent of the exempt function they intend to serve. 10

11 UNRELATED BUSINESS INCOME HOSPITAL EXAMPLES Hospital Services Provided to Non-Patients Pharmacies (non-patient prescription filling is UBI) Lab Testing (non-patient lab revenue is UBI) Community Need Exception can negate UBI treatment fact driven Services Provided to Another Tax Exempt Hospital Services such as billing, labs, training, etc. are not UBI if: Services are provided at a fee that does not exceed actual costs (no profit motive) Serving a hospital with less than 100 patients Services are consistent with the recipient hospital s exempt function 11

12 UNRELATED BUSINESS INCOME LOSSES Losses generated from unrelated activities can offset income from profitable activities. The loss must result from an activity which is a trade or business. IRS may draw inference from continued losses. 12

13 UNRELATED BUSINESS INCOME IRS currently looking at UBI to understand why a high percentage of organizations conduct business activities that continually generate losses Timing of revenue and deductions? Organization not operating business in a profitable manner? Expense allocations overly aggressive? (continuing controversy) Activity mission related? 13

14 UNRELATED BUSINESS INCOME EXCLUSIONS Exclude Dividends, Interest, Annuities and other Investment income Exclude Royalty Income, except for royalties received from a controlled corporation. Exclude rental income From real property Mixed lease: >10% rental from personal property, then taxable Rents based on net profits are taxable If debt-financed property, then possibly taxable 14

15 UNRELATED BUSINESS INCOME DEDUCTIONS Net Operating Losses are allowed Charitable contribution deduction 10% of UBTI before the contribution deduction. Specific deduction of $1,000 15

16 UNRELATED BUSINESS INCOME DEBT-FINANCED Debt Financed Income is included in UBI Defined as any property: Held to produce income, and Has acquisition indebtedness at any time during the year (if the property was disposed of during the tax year, at any time during the 12 months before the disposition). Includes rental real estate, tangible personal property, and corporate stock. 16

17 UNRELATED BUSINESS INCOME DEBT-FINANCED Exceptions to the definition of Debt-Financed Property If substantially all of the property is used for the organization's exempt purpose. (Substantially all = 85%) Property used in an unrelated trade or business Property related to research activities normally excluded from UBI Property used in certain excluded activities Property used by a related exempt organization for its exempt purposes will be counted in determining the 85% test. Property acquired for future exempt use (neighborhood land rule). 17

18 UNRELATED BUSINESS INCOME ALTERNATIVE INVESTMENTS Generally in the form of a partnership (S Corp income always UBI) Will receive a Form 1065 Schedule K-1 annually usually on a calendar year basis Box 20 of Schedule K-1, Code V indicates unrelated business taxable income May possibly also trigger taxable income in a number of states (additional schedules attached to the K-1) Generally sales of partnership interests do not result in UBI 18

19 JOINT VENTURES: FORM 990 PART VI QUESTION 16A Did the organization invest in, contribute assets to, or participate in a joint venture or similar arrangement with a taxable entity (person) during the year? 19

20 PART VI QUESTION 16A A joint venture = contractual arrangement with an agreement to jointly undertake a business enterprise, investment, or exemptpurpose activity without regard to: 1. Whether the organization controls the venture or arrangement 2. The legal structure of the venture or arrangement 3. Whether the arrangement is treated as a partnership for federal income tax purpose or as an association or corporation for federal income tax purposes 20

21 PART VI QUESTION 16B Did the organization: Follow a written policy or procedure requiring the organization to evaluate its participation in joint venture arrangements under applicable federal tax law, and Take steps to safeguard the organization s exempt status with respect to such arrangements? 21

22 PART VI QUESTION 16B Some examples of safeguard include: 1. Control over the venture sufficient to ensure that the venture furthers the exempt purpose of the EO. 2. Requirements that the venture give priority to exempt purposes over maximizing profits for the other participants. 3. The venture does not engage in activities that would jeopardize the EO s exemption (i.e., political). 4. All contracts entered into with the EO be on terms that are arm s length or more favorable to the EO. 22

23 SCHEDULE H PART IV Disclosure of management companies and joint ventures: Owned 10% or more by officers, directors, trustees, key employees, and physicians 1. Name of entity and description of primary activity 2. % owned by EO 3. % owned by officers, directors, trustees, or key employees 4. % owned by physicians 23

24 SCHEDULE H PART IV Examples: Ancillary JV formed by EO & its officers or physicians to conduct an exempt or unrelated business activity Company owned by EO & its officers or physicians that owns and leases to the EO a medical care facility Company that owns and leases to entities other than the EO diagnostic equipment used to provide medical care 24

25 LLCs AND PARTNERSHIPS Single member LLC disregarded no separate filing Not-for-profit versus for-profit LLC LLC taxed as partnership unless election made See slide 18 for tax reporting (Schedule K-1) Year end determination: Same as majority owner(s) if all exempt orgs Same as majority taxable owner(s) as disregard EO if income not UBI Same as majority owner(s) if all income taxable Sec 444 election 25

26 STATE UPDATE 26

27 QUESTIONS? Barb McGuan 27

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