501 (c)(3) TAX EXEMPTION

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1 501 (c)(3) TAX EXEMPTION

2 501(c) Tax Exemption What is 501 (c)(3)? Should we be a 501 (c)(3)? How do we get 501 (c)(3) status? Who is eligible under 501(c)(3)? By-Laws Requirements How to Apply Responding to Questions Notifications Conclusion What Is 501(c)(3)? Section 501 of the US Internal Revenue Code defines more than 30 categories of tax exempt organizations, from veterans organizations to labor unions. Different tax rules apply to different categories. The most favorable tax rules are provided to nonprofit organizations that meet the requirements of Section 501(c)(3). You may be thinking We are already a nonprofit. We filed papers with the state. The state process to create a nonprofit organization is completely separate from the federal process to determine its tax status. The federal process is much more restrictive. Some nonprofits will not meet the requirements of Section 501(c)(3), but instead will fit under some other category of Section 501. Should we be a 501(c)(3)? Qualifying under Section 501(c)(3) offers significant benefits: Exemption from payment of federal income tax. Exemption from payment of federal unemployment tax. Reduced postal rates. Tax deductions to contributors for their donations. Perhaps most important, most foundations and other grantmakers will only give grants to 501(c)(3) nonprofits. The federal tax exempt status provides them with some assurance that the organization serves some legitimate charitable purpose, is not organized for someone s personal benefit, and has at least a basic level of accountability. If your organization is a loose, informal group with little money or expenses, incorporation and 501(c)(3) tax exemption may be unnecessary. Many small volunteer service and advocacy groups exist with little or no money. They don t seek grants and their members or contributors don t care if their gifts are tax deductible. Even if you have some money or wish to seek an occasional grant, you may not need to establish a separate nonprofit 501(c)(3) organization. You may partner with an existing 501(c)(3) nonprofit that would agree to serve as your fiscal sponsor, administering financial matters on your behalf. For more information on this option, see CTAC s Do It Right! Kit on Fiscal Sponsors. 1

3 Tax exempt status under Section 501(c)(3) also imposes significant responsibilities: Limits the organization s purpose. Limits lobbying activities. Prohibits political activities. Prohibits financial benefits to its directors. Increases requirements for tax returns and audits. Requires many of your records be open to public scrutiny. Restricts distribution of assets if the organization is dissolved. Carefully weigh the benefits and costs of all your options before you commit the time and money to a 501(c)(3) application. How do we get 501(c)(3) status? If you have decided that 501(c)(3) tax exempt status is appropriate for your organization, be prepared for the process. Because this designation confers significant benefits on a nonprofit organization the IRS carefully screens applications to weed out inappropriate, ineligible or ill-prepared applicants. The process may take a year or more and you may have to respond to IRS requests for additional information, often on a short time deadline. Who Is eligible under 501(c)(3)? First, the nonprofit organization must be legally established under the law of a state. If you are starting a new organization you will draft and file Articles of Incorporation with your state government. You may consult an attorney, or contact the Secretary of State office for forms and instructions. In Pennsylvania, see CTAC s Do It Right! Kit on Incorporating a Nonprofit. 501(c)(3) status is limited to nonprofit entities that are organized and operated for one or more of the following purposes: Religious Educational Charitable Scientific Literary To test for pubic safety To foster national or international sports competition To prevent cruelty to children or animals The IRS instruction book explains these categories further. Most nonprofits will apply under the broad sounding term charitable, but not every nonprofit purpose will qualify under the IRS definition of these terms. 2

4 By-Laws Requirements To qualify for 501(c)(3) tax exemption certain provisions must appear in the nonprofit s Articles of Incorporation or By-Laws. If you are starting a new organization, you can save time and money by including these provisions in your original filing. If you have an existing nonprofit, you will need to obtain copies of your organizational documents on file with the Secretary of State and make amendments as needed. The following provisions are required: A statement that profits or funds will not inure (be paid) to any members. Of course, the organization can pay its employees appropriate compensation. Sample: No part of the Corporation s net earnings will inure to the benefit of members, directors, or other private persons except that the Corporation shall pay reasonable compensation to staff for services rendered. A statement that if the corporation dissolves, its remaining funds will be given to another tax-exempt organization according to the requirements of Section 501(c)(3) of the Internal Revenue Code. Sample: Upon dissolution of the Corporation, assets shall be distributed for one or more exempt purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. Be sure that your statement of purpose, or Mission Statement is consistent with the IRS regulations for tax-exempt activity. Your Mission Statement should briefly describe your purpose and then add the following: Sample: The Corporation is formed solely for charitable and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. A Statement that the corporation will not lobby extensively or support or oppose candidates for public office. Sample: No substantial part of the Corporation s activities will consist of carrying on propaganda, or otherwise attempting to influence legislation. The Corporation will not participate in any political campaign on behalf of or in opposition to any candidate for public office. How to Apply First, obtain current forms and instructions direct from the IRS. You can call (877) or visit Order the following items: IRS Publication 557 Tax Exempt Status for Your Organization A great cure for insomnia, but you ll need to read through it carefully to understand the process. 3

5 Form 1023 Application for Recognition of Exemption under Section 501(c)(3) and the instructions for Form 1023 This is it. Don t let it frighten you. Form 8718 User Fee for Exempt Organization Determination Letter Request. This form determines the amount of your application fee. In addition, some organizations may need to file other IRS forms depending on the type and length of their activities. Look through the list of forms and publications for anything that may be relevant to your organization. Make several copies of the forms that you can use for working drafts. After reading the instructions and Publication 557, fill in as many of the blanks as you can. If you still have some blanks, read the instructions and Publication 557 again, and then yell for help. You can seek assistance from an attorney or accountant, but find one with experience with nonprofits. You can seek out a local technical assistance provider, such as CTAC. You can also call the IRS Exempt Organization Office at (877) The financial pages are a common sticking point for applicants. If your organization has been in existence for more than one (1) year you must provide the current year s data plus up to three (3) previous years of actual revenue and expense information. If your organization is less than one (1) year old, you must provide the current year s data and two (2) years of projected revenue and expense. Remember, the IRS wants to see if your organization is or will be publicly supported as the IRS defines it, so take great care with this section and read the IRS definitions for the various categories. They also want to see that your dollars are being spent on the charitable activities you described, that funding is broad enough to qualify as public charity, and that the organization is not overly influenced by a small number of people (1/3 rule). Otherwise, you will be a private foundation. When you have completed your draft ask a qualified attorney, accountant or technical assistance provider to review it with you. Incorporate their suggestions if applicable and prepare the final version of the form. Prepare a check for the application fee, and mail the whole package to the IRS. Responding To Questions It is not uncommon for the IRS to take months to review your application and then play 20 Questions with you. They may ask for more information or documents, and they will set a deadline for response. DON T MISS THE DEADLINE. Carefully prepare your response, collect any requested documents, and review it all with your lawyer, accountant or technical assistance provider. Send it to the IRS by the deadline. 4

6 Notification Eventually you will receive notice of the IRS decision. This is called a Determination Letter, and it is a key document which you will need for every grant application you ever write, so guard it carefully. If you are a new organization, you will receive a Preliminary Determination. You may function as a 501(c)(3) tax exempt organization for five (5) years, when the IRS will examine your activities and financial information to see if you indeed met the requirements as you projected. If you have, or if you applied with an existing history of activities and financials, you will receive a Final Determination. Relatively few completed and timely applications are denied, but if you are unsuccessful, contact the IRS and an attorney for assistance with the appeal process. Conclusion The 501(c)(3) process is not easy and it is not appropriate for every organization. Carefully evaluate your options, choose what s right for your organization and prepare for the process. 5

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