1 What All Tax Exempt Organizations Need to Know 2014
2 Agenda History of the Form 990: Origination and developments over time Context: Disclosures at Public Companies: Convergence of governance expectations within for-profit and not-for-profit entities Recent IRS Enforcement and Penalties: IRS investigations concerning compensation reporting practices New (2008) 990 Disclosure: New compensation disclosure rules; what has changed? IRS Compliance Project Of Higher Education: What are they asking? Submission Action Steps What s Next?
3 History of the Form 990 Context: Disclosures at Public Companies Recent IRS Enforcement and Penalties Disclosure IRS Compliance Project Of Higher Education Submission Action Steps What s Next?
4 What is the Form 990? Public information returns filed by organizations that are exempt from federal taxation; considered a skinny-down proxy filing containing financial information The form has become a key research tool for philanthropic donors and other interested parties Eliminates the necessity of separately reporting annual audited financial statements Incorporates some of the compensation disclosure elements of public company proxy statements
5 Form 990 Access IRS Form 990 is significantly more than just an annual tax filing because most of it is open to public inspection and the required questions are designed to inform the public of how tax exempt organizations operate IRS examiners Potential students Potential donors Competitors Media reporters The faculty and staff that work at your organization Local politicians Civic groups The content of your annual IRS 990 filings are just as important as your: Web site Annual statements Media advertising
6 History of the Form 990 Context: Disclosures at Public Companies Recent IRS Enforcement and Penalties New (2008) 990 Disclosure IRS Compliance Project Of Higher Education Submission Action Steps What s Next?
7 Context: Disclosures at Public Companies Public companies are now approaching the sixth year of the new proxy disclosure rules Proxy statement disclosures require detailed discussion of compensation philosophy, compensatory elements and decisions made regarding NEO compensation in the CD&A Proxy Statement compensation disclosure has spilled over into the Form 990 Increased stakeholder, attorneys general, government agencies and lawmakers focus on executive compensation in the for-profit, publicly traded and not-for-profit, tax-exempt worlds Efforts by the IRS and SEC to develop rules that increase the flow of information to the public while requiring organizations to be more transparent in their disclosures about executive compensation
8 Context: Disclosures at Public Companies continued New 990 compensation disclosure requirements are more in line with what is required of public companies While not requiring the depth of discussion that the CD&A entails, the new 990 requires that the Trustees understand the process by which compensation decisions are made via a series of yes and no questions Three guiding principles: Enhancing transparency (more disclosure and more detail) Promoting compliance (by collecting inspection screening information) Minimizing the burden on the filing organization by increasing reporting thresholds
9 History of the Form 990 Context: Disclosures at Public Companies Recent IRS Enforcement and Penalties New (2008) 990 Disclosure IRS Compliance Project Of Higher Education Submission Action Steps What s Next?
10 Recent IRS Enforcement and Penalties Hospitals Initiative Overview As part of an initial investigation into 990 reporting practices, the IRS commenced an Initiative Project in February 2004 (concluded in 2006) An additional initiative commenced in 2009 and completed in 2011 Over 2,000 compliance check letters 1,000 single issue examinations The purposes of the project were to: Address the compensation of specific individuals or instances of questionable compensation practices Increase of awareness of tax issues as organizations set compensation in the future Learn more about the practices organizations are following as they set compensation and report it to the IRS and the public IRS noted significant reporting issues existed Undocumented loans to insiders Compensation spread across related organizations Definition of reasonable compensation can be confusing Deferred compensation reporting errors Errors in executive benefits and perquisite disclosures
11 Recent IRS Enforcement and Penalties continued Hospitals Initiative Overview continued In 2006, the IRS continued to investigate how executive compensation was set and paid at targeted non-profit hospitals A letter questionnaire was sent to over 500 hospitals The examination led to the collection of over $21,000,000 in additional revenue from expanded excise tax assessments against 40 disqualified persons or insiders The IRS actually provides a checklist to assist organizations establish procedures to help avoid future IRS investigations
12 Recent IRS Enforcement and Penalties continued Filing Late, Incomplete, Incorrect Information, or Failure to Facilitate Public Inspection Requirements For the Organization Organizations with annual gross receipts exceeding $1 million are subject to a penalty of $100 for each day the failure continues (with a maximum penalty with respect to any one return of $50,000) For all other organizations, a penalty of $20 a day, not to exceed the smaller of $10,000 or 5% of the gross receipts of the organization for the year For Responsible Person(s) If the organization does not file a complete return or does not furnish correct information, the IRS will send the organization a letter that includes a fixed time to fulfill these requirements. After that period expires, the person failing to comply will be charged a penalty of $10 a day. The maximum penalty on all persons for a failure with respect to any one return shall not exceed $5,000
13 Intermediate Sanctions Overview Congress created the Intermediate Sanctions rules effective July 30, 1996 Before Intermediate Sanctions rules, the IRS could only respond to excess benefit transactions (EBTs) in two ways: Revoke the organization s tax-exempt status (rather extreme) Ignore the problem Intermediate Sanctions excise taxes under IRC Section 4958 are imposed on any disqualified person who engages in an EBT with an IRC Section 501(c)(3) or 501(c)(4) taxexempt organization, and on certain organization managers who knowingly, willfully, and without reasonable cause participate in such a transaction A disqualified person is defined as any individual who was, at any time during the 5-year period that ends on the date of the transaction, in a position to exercise substantial influence over the organization s affairs, including officers, directors, trustees, and certain other key employees An EBT is one in which the value of an economic benefit provided by a covered exempt organization to a disqualified person exceeds the value of the consideration received by the exempt organization
14 Intermediate Sanctions Overview continued Non-compliance Excise Taxes An initial excise tax of 25% on the amount of the excess benefit is assessed on the disqualified person who improperly benefits from an excess benefit transaction The disqualified person must correct the transaction (generally, undo the transaction and restore the excess benefit to the tax-exempt organization) If the EBT is not timely corrected, an additional excise tax is imposed, equal to 200% of the amount of the excess benefit In addition, an excise tax of 10% of the amount of the excess benefit, up to $10,000 per transaction, is imposed on any organizational managers (generally, officers, directors, or trustees) of the organization who knowingly, willfully, and without reasonable cause participate in an EBT
15 Intermediate Sanctions Overview continued Rebuttable Presumption of Reasonableness An important protection for disqualified persons and organization managers a rebuttable presumption that the amount of compensation paid is reasonable Once invoked, the rebuttable presumption has the effect of shifting the burden to the IRS to establish that a transaction is an unreasonable EBT
16 Intermediate Sanctions Overview continued Rebuttable Presumption of Reasonableness continued In order to obtain the benefit of the rebuttable presumption, the following three conditions must be satisfied: 1. Independent Board or Committee Approval: The arrangement must be approved in advance by the Board of Trustees (or a committee of independent non-employees, thereof, that is composed entirely of individuals who do not have a conflict of interest or a material interest with respect to the arrangement or transaction under consideration)
17 Intermediate Sanctions Overview continued Rebuttable Presumption of Reasonableness continued 2. Comparable Data Used: In approving the transaction, the Board of Trustees or Committee must obtain and rely upon appropriate comparability data The information must be sufficient to allow the Trustees or committee to determine whether the transaction is reasonable Relevant information may include for-profit or not-for-profit compensation surveys or data compiled by independent firms reflecting the size, complexity, and location of the organization All of the elements of compensation should be considered as they relate to functionally comparable positions 3. Documentation: The Board of Trustees or Committee must adequately document the basis for its approval and be consistent with their formally stated policy of statistical compensation pay-level targets and position comparison methodologies. (What, when, who, and follow up actions, if any, in a formal and approved document)
18 An Illustrative Example - EBT President s compensation: Three Trustees serve on the Committee that approves the compensation of the organization s new president. Each Trustee knows that the fair market value of the president s services does not exceed $350,000. Nevertheless, each Trustee votes to approve setting the president s compensation at $450,000. Each Trustee may be subject to an excise tax of $10,000 (10% x $100,000 excess benefit) as an organization manager ($30,000 in total)\ The president would be subject to an excise tax of $25,000 (25% x $100,000 excess benefit) and would be required to repay the $100,000 excess benefit, plus interest, to the organization in order to avoid the imposition of an additional tax of $200,000 (200% x $100,000 excess benefit)
19 History of the Form 990 Context: Disclosures at Public Companies Recent IRS Enforcement and Penalties New (2008) 990 Disclosure IRS Compliance Project Of Higher Education Submission Action Steps What s Next?
20 Top Changes to the Revised IRS Form Expanded Disclosures for compensation to officers, directors and key employees 2. Disclosure of compensation paid to officers, directors and key employees from related organizations 3. Definition of a related organization has been broadened 4. New disclosure of requirement that the organization state whether or not it has a conflict of interest policy
21 Summary of IRS Form 990 Changes 2008 Compensation of officers, directors, trustees, key employees, highest compensated employees, and independent contractors The 2008 form attempts to serve two primary purposes in the compensation area: 1. Simplify and obtain more uniform basic compensation reporting from all organizations, regardless of type or size, in Part VII of the core form 2. In some instances, obtain additional detailed information regarding a listed person s compensation and the organization s compensation practices, particularly in those cases where the organization has compensated one or more persons above certain amounts
22 Summary of IRS Form 990 Changes continued Part VII and Schedule J require calendar year Form W-2 and Form 1099-MISC reporting for all Form 990 filers, regardless of their tax year The form no longer permits fiscal year organizations to elect to report an individual s compensation amounts in Part VII or Schedule J on a fiscal year basis Fiscal year organizations are required to use fiscal year reporting, and to report aggregate compensation in Part IX, Statement of Functional Expenses Organizations are not required to reconcile compensation reported in Part VII for individuals whose compensation is included in the aggregate compensation reported in Part IX, Statement of Functional Expenses
23 Summary of IRS Form 990 Changes continued The 2008 Form 990 Part VII Section A consolidates the compensation portions of the 2007 Form 990 applicable to all filing organizations, and Schedule A, Part I (for top 5 highly compensated employees - HCEs), previously applicable only to charitable organizations Section B of the 2008 form, which replaces the 2007 Schedule A, Parts II A and II B, requires independent contractor reporting for all filing organizations (not just charities), but limits it to the five highest paid, whether for professional or for other services The threshold amount for reporting the top 5 HCEs and independent contractors for all organizations has increased from $50,000 to $100,000
24 Summary of IRS Form 990 Changes continued The 2008 Form 990 also contains a new Schedule J, Compensation Information, to report detailed compensation information for those individuals listed in Part VII whose W-2 income exceeds $150,000 or whose compensation with nontaxable fringe benefits and expense reimbursements exceed $250,000 and all former officer, trustee, key employee, and HCE listed on the core form Part VII and Schedule J make compensation reporting more objective by requiring calendar year reporting based on compensation reported on W-2 (Box 5) and 1099-MISC (Box 7) filings The instructions to Part VII and to Schedule J contain definitions of important terms that are intended to provide greater clarity and promote uniform reporting of compensation on the form Schedule J includes a breakout of: Base Salary Bonuses and incentive payments Other compensation i.e., Severance, income earned in prior years paid this year, qualified & nonqualified retirement contributions, etc Deferred compensation Select non-taxable benefits i.e., housing, education, life insurance, gross-ups, etc. Compensation reported in prior 990s
25 Summary of IRS Form 990 Changes continued Additional information will be required if anyone listed on the core form has received: Severance or change of control payments Supplemental non-qualified retirement plan Additional information is also required if the organization has: Payments or bonuses that are contingent on revenues or net earnings Initial contract exceptions to general compensation policies Other non-fixed (event or performance-based) payments These requirements are essentially inspired by the SEC proxy statement compensation disclosure rules in that they require the description of incentive plan details.
26 Summary of IRS Form 990 Changes continued Persons required to be listed (current and former) All current officers, directors, and trustees who served at any time during the calendar year ending with or within the organization s tax year (no compensation thresholds here) All current key employees earning over $150,000 from the organization and related organizations Has power to impact the operation of the overall organization, or Manages a segment or activity representing over 10% of the organization Current five HCEs (over $100,000 of reportable compensation from the organization and related organizations) All former officers or key employees, using a five year look-back period, who received more than $100,000 of reportable compensation from the organization and related organizations All former directors or trustees, using a five-year look-back period, who received, in their capacity as a former director or trustee, more than $10,000 of reportable compensation from the organization and related organizations A person who was a top 5 HCE in one of the five prior years, but only if the person was no longer employed by the organization during the calendar year, received $100,000 reportable compensation, and would have been a top 5 HCE for the calendar year if still an employee A special 2008 transition rule applies for non-(c)(3) organizations in this context, who were not required to report top 5 HCEs prior to 2008
27 Summary of IRS Form 990 Changes continued Parts IV, VI, and Schedule J have a series of Yes/No Checkboxes that require narrative explanations for Yes responses Does the process for determining compensation include a review and approval by independent persons, comparability data, and contemporaneously substantiation of the deliberation and decision? Was there a loan outstanding to or by a current or former officer, director, trustee, key employee, highly compensated employee, or disqualified person as of the end of the organization s tax year? Are there interlocking business or family relationships with other organizations? Do you have a whistleblowers policy? Do you have a conflict of interest policy? Do you offer reimbursements for: First-class or charter travel? Spousal travel? Tax indemnification and gross-up payments? Discretionary spending accounts? Housing allowances? Business use of a personal residence? Health or social club dues? Maid, chauffeur, chef, etc. services?
28 History of the Form 990 Context: Disclosures at Public Companies Recent IRS Enforcement and Penalties New (2008) 990 Disclosure IRS Compliance Project Of Higher Education Submission Action Steps What s Next?
29 IRS Compliance Project Of Higher Education The IRS kicked-off their 2008 Higher Education Compliance initiative by sending approximately four hundred questionnaires (Form September 2008) to a cross-section of small, mid-sized and large private and public four-year colleges and universities this October The cover letter was three (3) pages and had an enclosed CD with an electronic version of the questionnaire The instructions for the compliance questionnaire has nine (9) pages primarily of definitions and line item instructions The Form Compliance Questionnaire itself has 94 enumerated questions on 33 pages
30 IRS Compliance Project Of Higher Education continued IRS Form has four parts: Part 1 Organization Information (22 questions/6 pages) Part 2 Activities (10 questions/13 pages) Part 3 Endowment Funds (27 questions/5 pages) Part 4 Executive Compensation (35 questions/8 pages) All executive compensation questions pertain to the six highest paid officers, directors, trustees and/or key employees for the 2006 calendar year.
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40 History of the Form 990 Context: Disclosures at Public Companies Recent IRS Enforcement and Penalties New (2008) 990 Disclosure IRS Compliance Project Of Higher Education Submission Action Steps What s Next?
41 Submission Action Steps Have a team of experts prepare a trial run using your latest information to develop a preview of what your 2008 submission will look like Are there any surprises that you would like to address? Do you need to beef up your 990 preparation process? Can you reconcile your annual audit report to the Form 990 submission? Is the message you are sending consistent with your mission? Do you have a go-to person that can authoritatively answer Form 990 submission questions? Review your current process for setting compensation levels and identify areas that may not meet IRS standards Do you have Board approval of compensation levels and policies? Is there decision-making by individuals that may have possible conflicts of interest? Do you use comparable data for setting pay levels? Will data comparisons support the expanded 2008 levels of disclosed compensation? Has a recent study been conducted to support a rebuttable presumption of reasonability? Is there adequate documentation of the overall compensation decision-making process?
42 Submission Action Steps Continued Review your current executive benefits and expense reimbursements Are your policies documented? Are your benefits and reimbursements consistent with your organization s stated mission? Re-examine your Compensation Committee and how it operates Does it have a charter or is the committee in your By-Laws? Is it composed of independent Board members? Does it play an active role in developing pay levels and compensation policies? Is the process for reviewing and approving executive compensation documented? Are deliberations and decisions well documented? Consider adopting written policies regarding: Conflicts of interest Whistleblowers Board and Committee document retention and destruction
43 History of the Form 990 Context: Disclosures at Public Companies Recent IRS Enforcement and Penalties New (2008) 990 Disclosure IRS Compliance Project Of Higher Education Submission Action Steps What s Next?
44 What s Next? Don t panic this new form will impact all not-for-profit colleges and universities CEO and key officer pay will remain controversial Boards will have a greater role in setting executive pay levels and policies Executive benefits may be reduced in areas that send a message that conflicts with an institution s mission The initial year of disclosure under this new format will be difficult and will improve in subsequent years Bonuses and performance pay will be more visible and will become more prevalent as a result
45 CONTACT INFORMATION Richard V. Smith Managing Director ExeComp Solutions LLC 7150 E. Camelback Rd Scottsdale, AZ (480) David Chang Managing Director ExeComp Solutions LLC 51 JFK Parkway, First Floor West Short Hills, NJ (973)