The Not-so-New 990 in Year 3 (2010) Changes, Experiences & Improvements

1. The Not-so-New 990 in Year 3 (2010) Changes, Experiences & Improvements March 15, 2011 CalCPA San Francisco Chapter Terry Miller

2. Agenda Today • Historical Perspective & Basics • IRS: What do we know about new 990 and compliance? • anecdotal experience suggests amazingly rapid adoption of strengthened governance and filing compliance by the sector & preparers (discussion) • Specific Changes (2009 & 2010): • Broad Changes • Core Form Changes • Schedules Changes • Glossary Changes • IRS: What do we know about FY 2011 focus? ….with opinion, gossip & speculation throughout! ….assuming you already know the “new” 990 pretty well.

3. Historical Perspective: First Overhaul in 30 Years: Big Project • IRS released Draft 990 June 2007, received 650 formal comments, made some changes, but dug in its heels on governance • Stated goals: 1. compliance, 2. transparency, and 3. no increase in burden • #3 was subject of public derision

4. Historical Perspective:Major changes from Draft to Final for 2008 • IRS’ Steve Miller 10/22/07: “…[from] the comments, we [made] some decisions: • The so-called efficiency ratios will drop off the summary page; • We will movethe program service explanationsup to the front; • We will substantially re-formatsome of the moreburdensome schedules; • And we are considering what targetedtransition relief we should provide.”

5. Basics: 990, 990-EZ or 990-N? • BIGGEST CHANGE: Transition Rules on filing thresholds are done: 2010 is final stage. From now on: • File Form 990, unless: • Form 990-N: Gross receipts “ordinarily” <$50K • Form 990-EZ: Gross receipts “ordinarily” <$200K and Assets <$500K • certain exceptions when the full 990 is required (e.g. DAF sponsors) • 2010 is first year that tiny $200K organizations must file the full 990

6. Basics: How big are Exempt Organizations? (n=310,370) (n=218,337)

7. Basics: Parts of the Core Form I & IISummary & Signature Block IIIStmt of Program Service Accomplishments IVChecklist of Required Schedules (much improved) VStmts Re: IRS Filings & Tax Compliance(evolving) VIGovernance, Management & Disclosure (improved) VIICompensation of Ofcrs, Dirs, Ttees, Key Ees, Highest Comped Ees, and Indep Contractors VIIIStatement of Revenue IXStatement of Functional Expenses XBalance Sheet XI[New 2010]Reconciliation of Net Assets(helpful) XII[New 2009] Financial Statements & Reporting

8. Basics: 16 Schedules [& how to remember] (based on “trigger questions” – various thresholds) • (Not all schedules relevant for 990-EZ filers; none for 990-N) • A Public Charity Status and Public Support [509a] • B Schedule of [Big] Contributors • C Political Campaign & Lobbying Activities • D Supplemental Financial Statements [Detail] • E Schools [Education] • FStatement of Activities Outside the U.S. [Foreign] • G Suppl. Info. Re: Fundraising or Gaming Activities • HHospitals

9. I Grants & Other Assistance to Orgs, Govts, and Individuals In[side] the United States • J [Justify] Compensation Information • K Supplemental Information on Tax-Exempt Bonds [“k” is lawyer shorthand for contract] • L Transactions With Interested Persons [Loans] • M Non-Cash Contributions [Money-not? ] • N Liquidation, Termination, Disso, or Significant Disposition of Assets [Non-existence] • O Supplemental Information to Form 990 or 990-EZ [Open Narrative (required + optional)] • Clarified: only narrative answers from CORE FORM • RRelated Organizations and Unrelated Partnerships

10. IRS Examinations are on the Rise

11. IRS Exam staff is on the Rise

12. IRS: “Hey Congress! How’s that 3 Year no-file automatic revocation workin’ for ya?”(almost a complete debacle) • By May 17, 2010, there were >300,000 organizations about to be automatically revoked for no filing in 3 years. (Pension Protection Act) • IRS would have faced many of them re-applying, typically tiny, messy D-I-Y filings, so there was an extraordinary (not legislatively approved or authorized) “Filing Relief Program”: • it worked! Now there are less than half as many due to be revoked shortly (“early 2011”).

13. IRS is aware there may be some snakes in those 990-N weeds • “Compliance Review: EO will conduct a compliance review of organizations that filed a Form 990-N but previously reported financial activity indicated they were ineligible to do so.” • Best guess is that reinstatement filings will still be fast-tracked to avoid determinations backup:

14. IRS: How many determinations are there?(about 65,000 last year, 44% got questions)

15. IRS: So how many 990 filings are there?(about 530,000 990 & 990EZ for 2008)

16. IRS strongly prefers e-filed returns • Easier to manage, profile, and fewer errors; 27% of 2008 990s and 14% of 990EZs were e-filed • Paper filed 990s had errors 28% of the time, and 990EZs 29% of the time, just on initial review, while • while e-Filed 990s had errors just 2% of the time, and 990EZs just 1% of the time • What errors? • Mismatched Name/EIN • Missing Schedules (especially Schedule O) • “Inconsistencies in reporting of revenues, expenses and assets” …. expect to see mandatory e-filing for more filers

17. IRS: What schedules are actually filed?

18. IRS: So how many exams are there?(11,449 exams, 3,893 compliance checks; % exams rising)

19. IRS: “Integrates” prior Projects into “overall process” (translation: not discontinuing) • Combined Annual Wage Reporting 2007-2010 • Match W-2 to 941 “helped EO improve case selection and focus examination resources on organizations with high potential for non-compliance”  • Consumer Credit Counseling • initial phase examined 63 largest, revoked 41; based on that project: • sent questionnaires to all others, revoked over 59% of them “to date” • stimulated parts of the PPA governing exempt credit counseling organizations

20. IRS: “Integrates” 2 • [Seller-financed] Down Payment Assistance • (San Francisco’s own Joe Kroll !) (gossip; per grapevine) • issued a targeted 2006 revenue ruling • examined 91, revoked 87 • initiated special determination screening • of 600 determination requests thus screened, “over half were denied, closed for failure to respond, or withdrawn” and • “In 2008, Congress passed legislation prohibiting the use of down-payment assistance programs funded by those who have a financial interest in the sale in order to qualify for FHA insured mortgages.”

21. IRS: “Integrates” 3 • Executive Compensation Compliance: Loans • project began in 2004 • 200 compliance checks, 50 single-issue exams • based on results: 169 examinations (of 250!), 18 revocations, AND:

22. IRS: “Integrates” 3 • Section 501(c)(7) Investment Income – examined eighty groups reporting it but not paying tax due, revoked or changed status of 60% of the eighty • Political Activities Compliance Initiative (PACI) • no longer a separate initiative • 2010 election not reported publicly yet • 2004, 2006, 2008 cycles: 250 examinations • common allegations on next slide; >50% “substantiated” by IRS • Only SEVEN revocations (still a bright line test?)

23. IRS: “Integrates” 5 • Political Activities Compliance Initiative (PACI) (cont)

24. IRS: “Integrates” 6 • Section 527 QSLPO organizations (owe 8871 but not 8872 because they file election commission disclosures); 3600 compliance checks revealed broad compliance • Supporting Organization 509(a)(3) Compliance • strengthened determination screening, and • 300 examinations: 72 revocations, 59 reclassifications as private foundations or public charities, 30 terminations, and • Congress tightened rules with PPA “In light of what we have learned through the various enforcement activities discussed above, the resources we have developed for our staff and the public, and changes resulting from legislation, we are winding down separate projects and incorporating them into overall compliance processes.”… (Integration)

25. Form 990 & Schedules: Changes since 2008 (Not planning to cover in detail: 990-EZ Schedule H Schedule K)

26. Broad Changes 1 • 2009: clarifies ALL 990 filers owe Schedule O • 2010: changes Schedule O to only Core Form narrative responses & explanations (for accessibility) • Core Form headers have checkboxes required if Schedule O has information (Parts III,V,IV,VII,XI,XII) • Continuation forms are eliminated; duplicate main pages if needed (Schedules F-1,I-1,J-1,N-1,R-1) • New narrative sections so that O will be just for Core Form on (Schedules E,G,K,L,R) • 2009: clarifies that: organizational termination, new programs, and changes to governing documents, must all be reported on 990, not by letter to IRS (IRS continues to mention this in speeches about 2010) (Parts I, III, VI)

27. Broad Changes 2 • RE-emphasized in 2010 Instructions that Governance Policy Questions Yes/No are only Yes ifthe Boardadopted the policy before the end of the tax year • TIP:be sure to be familiar with the two-page December 2010 IRS Governance “Check Sheet” for its auditors to use; it goes beyond 990 questions in some respects (!)  • Transition provisions on Schedules H (Hospitals) and K (Bonds) are over (2009); full Schedules now due • BUT, due to Affordable Care Act (healthcare reform), 2010 Calendar 990’s with Schedule H are automatically extended 90 days and may not be filed prior to July 1 (ACA: facility-by-facility vs. EIN-by-EIN exemption), also audited financials are now required to be attached to 990 (2010)

28. Core Form Changes 1 • Part I Summary • none • Part II Signature • none • Part III Program Service Accomplishments • 2009: New activities must be on 990 not by letter (2 instr) • 2009: Activity Codes required (4)

29. Core Form Changes 2 • Part IV Checklist of Required Schedules • 2010: clarifies that all 501(h) public charities and all 501(c)(4,5,6) organizations with member dues must fill out relevant parts of Sched C (4, 5) • 2009: added “or through related org” to quasi-endowment question (10) • 2009: lots of phrasing clarifications especially Schedule D triggers (11) & less need for a translator generally • 2009/2010: asked whether part of consolidated audit (improved from 2008) and if Yes, some Sched D parts optional (2009), unless also individually audited (2010 clarification) (12b) • 2009: instruction about foreign investments as Sched F trigger (14) • 2010: Hospitals required to attach audited financials (20a) • 2010: NEW question making 512(b)13 control / Schedule R Part V explicit (35a)

30. Core Form Changes 3 • Part V Other IRS Filings / Compliance • 2009: improved phrasing variously • 2009: clarified that 1096 and W-3 questions include leased or common paymaster employees (1a, 2a) • 2010: tightened instructions on (c)(12)s regarding non-exempt-function income (13a-c instr) • 2010: Affordable Care Act changes: NEW questions: (c)(29) insurers & taxable tanning beds  (14a,b) • Part VI Governance Management & Disclosure • clarified that relations among ODTKEHCEs (2009) does not include exempt org boards (2010) does not include “formers” (2 instr) • 2009/2010: clarified “material” diversion of assets (2009) in amount, and is now (2010) “significant” diversion (5 instr)

31. Core Form Changes 4 • Part VI Governance Mgt & Disclosure (cont) • 2009: reorganized questions to move IRC authority disclaimer only to Section B (9,10,11) • 2010: clarified local chapters/affiliates question mostly to say that typical 509(a)(3)’s don’t count (10a instr) • 2010: NEW instruction that if 990 provided to Board is redacted in any way, must answer “No” (11a instr) • 2009: conflict of interest defined for independent approval of compensation (15) • 2009: new instruction that list of states getting copy of 990 may no longer be answered “all states” (17 instr) • 2009: clarified that 990 disclosure on “Another’s website,” does not count Guidestar (overly redacted) (18 instr)

32. Core Form Changes 5 • Part VII Compensation • 2009: clarifications • Highest Compensated Ees are other than ODTKEs • Key Ee status any time during year means Key Ee for reporting, must report full year compensation • foreign person ODTKEHCEs who are compensated and reported on 1042-S should be reported like any other compensation • filing organizations should report compensation paid to ODTKEHCEs by unrelated organization for services to the filing organization as compensation from the filing organization if it has knowledge of the arrangement, regardless how reported by unrelated organization • there is a “taxable organization employee exception” for classic volunteer / loaned executive programs, but only if employer does not treat it as a charitable contribution to the filing organization • Management Companies providing ODTKE-like services are listed as independent contractors in Section B, not A

33. Core Form Changes 6 • Part VII Compensation (cont) • 2009: clarifications (cont) • compensation of ODTKEHCEs from a “common paymaster” should be reported as compensation from the filing organization • these measurements should all be used in determining listed persons • CONFUSION: 2009 if related org paying ODTKEHCE was only related part of year, report all comp for year; 2010: may report only the part of year was related (!) (Column E) • 2010: clarifications / new instructions • check the box only if no compensation from filing organization norrelated organization(Section A) • report hours worked for filing organization in Column B, report all hours worked for related organizations on Sched O • new instructions on deferred comp (evolving; also 2009) • new totals for pages in Section A

34. Core Form Changes 7 • Part VIII Revenue • 2009: Business codes required for Program Service Revenues Miscellaneous Revenues by type (2 & 11) • 2010: re-clarifies that in-kind services & facilities are NOT reported for tax, even if GAAP reportable • 2010: “special events” renamed “fundraising events” throughout (instr) • 2009 & 2010: instructions clarify auction reporting (book donated item at FMV, then sale/gift (if FMV was disclosed), then event net (8 instr: 1f,1g,8a,8b,8c) • Part IX Expenses • 2010: clarifies that lines 5-10 are for all employees, whether paid directly or via leasing companies / paymasters; report fees to leasing companies & paymasters on 11g (5-10, 11g) • 2010: line 24f Other Expenses should not be more than 10% of Line 25 and if it is, then must itemize on Schedule O (24f)

35. Core Form Changes 8 • Part X Balance Sheet • 2009: Receivables from ODTKEs changed to add “highest comped Ees,” and drop “other related parties”, and 2010: Receivables from 4958 disqualified persons to include from VEBA sponsoring entities (5,6) • 2009: if Line 11 publicly traded securities contains any one security worth >5% of Total Assets, must list on Line 12 as “Investments-other securities” (drives Schedule D disclosure) (11,12) • Part XI Reconciliation of Net Assets • 2010: Finally! The old (pre-2008) “Line 20” for prior period adjustments • Until this fix, only place this was found was on the Schedule D reconciliation to Audited financials

36. Core Form Changes 9 • Part XII Financial Statements & Reporting • 2009: added instruction to explain on Sched O if accounting method or year changed or “other” was checked (1) • 2009: added instruction to explain on Sched O if audit oversight or selection process changed during year (for DIY preparers: heads up re: CA Nonprofit Integrity Act) (2c) • 2009: added question about audited financials: separate, consolidated, or both? (2d) • 2009: added question asking explicitly if A-133 audit reqm’t was met; if not, explain on Schedule O (3b)

37. Schedules Changes 1 • Schedule A: Public Charity Status • new instructions to account for pledges (2009) and subtract any uncollectible pledges from the year in which the pledge support was counted (2010) • clarification that changing 509(a) type on Schedule A does not update Master List; filer may submit request for determination • Schedule B: Contributors • 2009: clarify that “Anonymous” not allowed • 2010: instruction added that may not substitute list for Schedule B; add form pages as needed (they say so they don’t publicly disclose it by not recognizing it when a copy is requested) • Schedule C: Political Campaigns & Lobbying • no substantive changes; 2010 reminder that 501(h) electing charities MUST fill out Part II-A

38. Schedules Changes 2 • Schedule D: Financial Statement Details • 2009: clarifies/reminds that endowments held by others should be reported (V: 3a,b,4) • 2009: itemize publicly traded securities where security is >5% of total assets (Re-emphasized in 2010 by new requirement that such large holdings be reported on Core Form Balance Sheet as “Other Assets” (12) which in turn drives Sched D Part VII) (VII) • 2009 AND 2010: IRS “significant changes” and speeches emphasize that full text of FIN48 footnote is to be reported verbatim in Part X even if there are no uncertain tax positions (X) • 2009: if filer is in consolidated audit, reconciliation Parts XI-XIII are optional (Re-emphasized in 2010 by moving this optional notation to face of Core Form Trigger question) (XI-XIII) • Schedule E: Schools(no changes)

39. Schedules Changes 3 • Schedule F: Foreign Activities • Eve Borenstein in 2010: “Schedule Flounder” Opinion: IRS can’t decide whether this is narrow focus like currency control (funds spent there) or broad focus like staff attention while working in U.S., or even how to treat expenditures foreign via U.S. credit card; speeches and Q&A answers sometimes contradict common sense and instructions: Schedule F is a “work in process” (being charitable) • 2010: Part I wants number of independent contractors in region (Col c) • 2009/2010: Part I adds investing to “activities” conducted in region on form (2009: added to instructions) (Col d) • 2009/2010: Part I changed language: expenditures “for” region from “in” region (2009) and added “and investments” (2010) (Col f) • 2010: instruction: must report investment activity on separate line from other activity in Part I

40. Schedules Changes 4 • Schedule F: Foreign Activities (cont) • 2009/2010: definitely current thrust towards all expenses focused on a region not just spent in a region (Col f) • 2009/2010: Part II includes grants to U.S. organizations for foreign work • 2010: Part II includes program related investments • 2010: Part II valuations of future year promises should be present value • 2009: Part III similar reasoning “for” foreign activity, even if U.S. individuals • 2010: Part IV ENTIRELY NEW section about other IRS filings which may be due

41. Schedules Changes 5 • Schedule G: Fundraising & Gaming • 2010: address now required for professional fundraisers, not just names (I.2.b.i) • 2009: “All States” no longer acceptable as answer where filing organization is registered to solicit gifts (I.3) • 2009: “Food and beverages” and “Entertainment” now broken out as event expenses from former “Other direct expenses” (which still exists) (III.7,8) • 2009: Gaming manager compensation only reportable to the extent allocable to gaming management (III.16) • Schedule H: Hospitals • 2009: Full schedule due, transition relief is over • 2010: Various changes, biggest one is facility-by-facility exemption qualification rather than EIN-by-EIN (result of Affordable Care Act) (temporary relief for yrs begin <3/23/2010) • 2010: May not file until July 1, 2011 (automatic extension)

42. Schedules Changes 6 • Schedule I: Grants Inside U.S. • 2010: now clear that grants to U.S. organizations for foreign work are reported on Schedule F not Schedule I [or both?] • Schedule J: Compensation • 2010: asks about severance / change-of-control payments not just from filing organization but also related orgs (I.4.a) • 2009: new question added to ask whether, if filing organization took advantage of the so-called “first bite” rule (#8), it also used a rebuttable presumption procedure anyway (I.9) • Schedule K: Tax-exempt Bonds • 2009: Full schedule due, transition provisions over • 2009 & 2010: various clarifications, some new columns, some new lines

43. Schedules Changes 7 • Schedule L: Transactions with Interested Persons • 2009: mostly clarified exemption from reporting for certain bonds purchased by interested persons (publicly traded etc), and how to report grants and scholarships without revealing donor names (relation to a substantial contributor is an interested person) • 2009: Part IV clarification on reporting joint ventures with interested persons, and clarification that governmental entities and instrumentalities are not interested persons • 2010: Part IV clarification that business transactions [with interested persons] include insurance contracts, and that entities controlled by family members of interested persons count as interested persons

44. Schedules Changes 8 • Schedule N: Liquidation, Termination, Dissolution • 2010: in keeping with notion that termination must be reported on Form 990, old lines asking if IRS had recognized termination by letter have been deleted • Schedule O: Supplemental Information [to Core Form] • 2010: clarification mentioned earlier that O is now only for Core Form responses

45. Schedules Changes 9 • Schedule R: Related Organizations • 2009 & 2010: definition of Control, and more abstract methods of Control, keep evolving, more examples in instructions, Glossary changes • 2009: treat Governmental entities as exempt orgs for Part II • 2010: New 512(b)(13) Yes/No column in Part II for each Related organization (II,g) • 2010: New % of ownership column in Part III partnerships (III,k) • 2010: New column to explain method of valuing transactions in Part V Line 2 (V.2.d) • 2010: continued confusion about applicability of 512(b)(13) to related 501(c)(non-3) organizations [discussion if time] (V)

46. Glossary Changes 1 • 2009: incorporated in Core Form instructions • 2009:

47. Glossary Changes 2 • 2010 changes:

48. IRS: What do we know about FY 2011 focus? 1 • “Integration” of earlier projects • Automatic revocation of over 120,000 EOs • Reinstatement applications from some of the 120,000 • W-2 / 941 Matching • Credit Counseling & Seller Financed Down Payment Assistance • Political Activity (?) • 509(a)(3) Support Organizations [especially Type III] • New Initiatives • Form 990 as a Compliance Tool [data mining for miscreants] “As more organizations file the redesigned Form 990, EO Examinations will use the updated form to identify non-compliant and potentially non-compliant organizations for examination, to develop targeted compliance projects and to inform and supplement educational efforts. In FY 2011, EO will continue to work with our research office to develop more robust risk models and refine compliance queries to promote a more finely tuned compliance approach and more tailored education efforts.”

49. IRS: What do we know about FY 2011 focus? 2 • New Initiatives (cont) • 512(b)(13) Project (particularly Colleges & Universities) • Charitable Spending Initiative [a/k/a “commensurate test”] targeted examinations: • high levels of fundraising expense • high levels of UBTI with low levels of program • high ratios of officer compensation compared to program • low levels of program compared to revenues • Colleges and Universities Project, ongoing • 400 Questionnaires, May 2010 report, 30 ongoing exams • Exempt Organizations Services and Assistance (small EOs) • how best to educate small charities? • focus groups, phone surveys, cost-benefit analysis • Form 990-N Mis-filers

50. IRS: What do we know about FY 2011 focus? 3 • New Initiatives (cont) • Governance Check Sheet (started Dec 2010) data analysis • Mortgage Foreclosure Assistance – modeled on credit counseling and seller-financed down payment assistance • 501(c)(12) Project – non- “mutual” income • Section 501(c)(4),(5) and (6) Organizations [the new PACI?] • Voluntary Employee Benefit Associations (c)(9) over $100K