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Good Governance for Nonprofits: IRS Rules, Guidance, and Best Practices

Good Governance for Nonprofits: IRS Rules, Guidance, and Best Practices. Delaware Valley Grantmakers January 14, 2010 Abigail R. Mulligan. Roadmap. Overview of Attendees Governance Discussion: Events that have shaped the governance discussion Sources of Governance Legal Sources

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Good Governance for Nonprofits: IRS Rules, Guidance, and Best Practices

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  1. Good Governance for Nonprofits:IRS Rules, Guidance, and Best Practices Delaware Valley Grantmakers January 14, 2010 Abigail R. Mulligan

  2. Roadmap • Overview of Attendees • Governance • Discussion: Events that have shaped the governance discussion • Sources of Governance • Legal Sources • Legal Guidance • Peer Organization Practice Guidance • The IRS and Governance • Discussion: IRS’s entrance into the arena • ACT Conclusions and Recommendations • IRS Reports, Announcements and Speeches • IRS Guidance: Life Cycle, Check Sheet, Forms, Training Materials • Themes • Discussion: IRS’s place in Governance Discussion and its next steps • Other Guidance and Best Practices • Final Comments • Resources

  3. Governance • “The Exercise of authority and control over an organization” • IRS Governance Training Materials • Management • Engagement • Awareness • Skill • Knowledge • Accountability • Controls • Independence

  4. Discussion: Events That Have Shaped the Governance Landscape • Sarbanes Oxley • Charitable Organization Scandals: Smithsonian, Red Cross, American University, Stevens • Board not engaged in setting strategic direction • Not monitoring conflicts of interest • Excess executive compensation • Pension Protection Act of 2006 • Revised Form 1023 (2004) • Revised Form 990 (2008) • ACT Report (2008) • Madoff and Other Ponzi Schemes • Economic Downturn • In what ways has your organization acted/reacted? • Create or rethink policies? • Implement previously created policies? • Create or rethink practices? • Seek consultation of advisors: attorney, accountant, investment advisor or otherwise?

  5. Smithsonian • Background • Smithsonian is a trust instrumentality of the U.S. that has a private endowment, but with approximately 2/3 of its operating revenues in FY 2008 originating from federal appropriations • Board of Regents • 2007: Lawrence Small (Smithsonian Secretary) and Shelia Burke (Deputy Secretary and COO) resign after compensation package of each draws Congressional attention • Issues • Lax governance by Board of Regents • Lack of transparency • Excessive compensation of top executives • Lack of internal controls • Reform Recommendations made • Board of Regents adopts new set of governance practices to ensure more active role in organization and in setting “direction” of Smithsonian • Government Accountability Office recommends 4 reforms and Regents’ Governance Committee (an independent review committee chaired by Patty Stonesifer) recommends 42 reforms • As of December 2009, Board of Regents has adopted 1 of 4 recommended GAO reforms and 39 of Governance Committee reforms

  6. Legal Sources of Governance • State Corporate and Trust Law • Governing Instruments: Certificate of Incorporation and Bylaws • Powers, duties and responsibilities of officers and directors • Voting rights • Election of officers and directors • Policies and Procedures • Board Requirements • Size • Term limits • Meetings and notice thereof • Duties of Loyalty, Care, Obedience • Business Judgment Rule • Investment and Accounting Rules (UPMIFA, UPIA, etc.) • States Attorney General and Charity Officials of Individual States • Stewards of charitable funds • Regulate fundraising, registration and reporting • Enforce nonprofit corporate and trust law

  7. Legal Sources of Governance (cont.) • Sarbanes-Oxley • Criminal liability for retaliation against whistleblowers reporting a federal offense • Criminal liability for destruction of records with intent to obstruct a federal investigation • IRS Code and Regulations • Prohibition Against Self Dealing (Section 4941) • Financial transactions with disqualified person using foundation assets • Investments Jeopardizing Charitable Purposes (Section 4944) • Certain asset investments subject to additional scrutiny: futures, oil and gas wells, puts, calls, and the like • Program-related investments as an exception • Taxable Expenditure (Section 4945) • Application of charitable assets to non-charitable/impermissible use • Excess Benefit/Private Inurement (Section 4958) • Organization provides an excess economic benefit to a person who is in a position to exercise substantial influence over its affairs (e.g., unreasonable compensation)

  8. Other Sources of Governance • Attorney General and State Charity Regulator Guidance • IRS Guidance • Peer Organization Guidance

  9. Discussion: The IRS Enters the Governance Arena • Is the Charitable Organization Community aware of the IRS’s entrance into the governance arena? • Is the IRS’s entrance into the governance arena appropriate? • What is the IRS’s role and extent of authority with respect to governance issues?

  10. IRS Enters the Governance Discussion • Background: • IRS believes good governance and tax compliance are linked and has set out to develop the objective data to prove its theory • Examination Check Sheet • Form 1023 • Form 990 • Collaboration with Guidestar to make 990s publicly available to promote transparency and accountability • Determination Stage (Form 1023) and development of Cyber Assistant Tool (due to go online presently) • ACT (TE/GE Advisory Committee) report on “The Appropriate Role of the Internal Revenue Service with Respect to Tax-Exempt Organization Good Governance Issues” (June 2008) • Discussion: Why isn’t compliance with the “law” enough? • For organizations: good governance as tool to reduce risk of non-compliance (?) • For IRS: IRS cannot delegate its duties to enforce conditions of tax-exemption to states and to the sector itself • Good governance derives from tax code? • The “key organizations and operating principles that the IRS has already articulated, and that find their origin in the Code. They are not expressly laid out in the Code…but the principles of governance that are of concern to the IRS should derive from the requirements for tax exemption, and should aid an organization in meeting them” • New Compliance Measures for the IRS • Review of Organizations Unit • Exempt Organizations Compliance Area

  11. ACT Report: The Appropriate Role of the Internal Revenue Service with Respect to Tax-Exempt Organization Good Governance Issues • Issued June 2008 by Advisory Committee on Tax Exempt and Government Entities (ACT) • Summary of Conclusions • Empirical evidence is lacking to support the effectiveness of specific governance measures • Exempt organizations are governed by boards, not the IRS • IRS should continue to collaborate with tax-exempt community on governance issues • Specific governance measures should be mandated only in rare circumstances • IRS should explain relationship between tax compliance and each practice it wishes to address • Consistent and fair treatment is critical • Education is more appropriate than pressure • Governance inquiries should be made in a neutral manner • Compliance questions may be more appropriate than governance questions • IRS should acknowledge expressly when a practice is not required

  12. Remarks by Sarah Hall Ingram • Commissioner Tax Exempt and Government Entities, June 23, 2009: “Nonprofit Governance – The View from the IRS” • “The IRS has a clear obligation to see that the tax subsidy that the tax-exempt community enjoys – estimated by the Office of Management and Budget to be billions of dollars per year – is used properly, for the purposes and within the parameters the Congress has laid down.” • “adherence to principles of good governance is entirely consistent with both [charities’] task to accomplish…charitable objectives, and [the IRS’s], to see that the tax-exempt sector complies with the Code. …[G]ood governance helps advance these goals.”

  13. Hall Ingram Remarks (continued) • Meaning of “Good Governance” to the IRS: • The “key organizations and operating principles that the IRS has already articulated, and that find their origin in the Code. They are not expressly laid out in the Code…but the principles of governance that are of concern to the IRS should derive from the requirements for tax exemption, and should aid an organization in meeting them” • Internal Controls appropriate to the organization • Elements of Good Governance • Mission • Engaged, informed, independent board • Proper use and safeguarding of assets • Transparency

  14. IRS Guidance, Governance and Related Topics “The IRS is dedicated to ensuring that charities operate exclusively for charitable purposes and use their assets to accomplish charitable ends. Good governance is important to increase the likelihood that organizations will comply with the tax law, protect their charitable assets and, thereby, best serve their charitable beneficiaries. …Current IRS positions on nonprofit governance are best reflected in the reporting required by the revised Form 990, effective beginning with 2008 tax years, and the governance and related topics components included in the Life Cycle.” http://www.irs.gov/charities/article/0,,id=178221,00.html

  15. IRS Guidance on Governance • Published on IRS’s Web site at • http://www.irs.gov/charities/article/0,,id=178221,00.html • Charitable Organization “Life Cycle” • Mission • Organizational Documents • Governing Body • Governance and Management Policies • Financial Statements and Form 990 Reporting • Transparency and Accountability

  16. Mission Statement “The Internal Revenue Service encourages charities to establish and review regularly the organization’s mission. A clearly articulated mission, adopted by the board of directors, serves to explain and popularize the charity’s purpose and guide its work. It also addresses why the charity exists, what it hopes to accomplish, and what activities it will undertake, where, and for whom.”

  17. Organizational Documents • Organizational documents provide the framework for governance and management • State law will dictate the form of the document (i.e., Trust Agreement, Articles of Incorporation, Bylaws, etc.) • IRS requires organizational documents to be submitted in connection with Form 1023 • IRS requires reporting of significant changes on Form 990

  18. Governing Body • Why is IRS interested in the governing board? • IRS believes that an active and engaged board = tax compliance • Board members bring knowledge, skill and enthusiasm and fulfill need: accounting, finance, compensation, ethics, legal • Composition and size of board should be appropriate to ensure: • Compliance with tax laws • Safeguarding of charitable assets • Furtherance of charitable purposes • Relationship between board size and compliance: • Small boards may not represent sufficiently broad public interest and lack required skills or resources to govern effectively • Large boards may have difficulty making decisions • Executive and advisory committees may be appropriate with large boards • Independence of Board Members • Governing board should include independent members • Board should not be dominated by employees or persons related by family or business ties • IRS reviews board composition to determine: • Representation of broad public interest • Identify potential for transactions (leading to misuse of charitable funds) • Power of independent board members or others to elect directors and vote on key decisions • Delegation of primary board responsibilities to outside management company

  19. Governance and Management Policies • Executive Compensation • Conflicts of Interest • Investments • Fundraising • Documentation of Governance Decisions • Document Retention and Destruction • Whistleblower Claims

  20. Executive Compensation • Reasonable compensation • Self-Dealing and Tax Expenditure Rules (private foundations) • Private Inurement (public charities) • Rebuttable Presumption of Reasonableness under IRC Section 4948 and Corresponding Treasury Regulations • Approved in advance by knowledgeable, conflict-free authorized body • Comparables implemented in making the decision • Basis of determination contemporaneously documented • Executive Compensation continues to be a focal point in the IRS examination program

  21. Conflicts of Interest • Duty of Loyalty mandates a director to act in interest of charity rather than in personal interest • IRS strongly encourages adoption of and adherence to Conflict of Interest Policy and provides sample policy at Appendix A of the Form 1023 • Key provisions of Conflict of Interest Policy: • Requirement that directors and staff act in interest of charity without regard to personal interest • Procedures for determining existence of potential conflicts • personal, financial, business affiliations • Course of Action when conflict is identified • Periodic Disclosure of Potential Conflicts • Regular and consistent monitoring and enforcement of conflict policy • Application of Policy(ies) to Board and Staff

  22. Fundraising Policy • Knowledge of and adherence to federal and state requirements • Solicitation materials are accurate, truthful and candid • Reasonableness of costs encouraged • Inform public and donors with information on fundraising costs and practices

  23. Documentation • Governing Body Minutes and Records: contemporaneous documentation of meetings minutes and board actions • Document Retention and Destructions: written policy regarding standards for the integrity, retention and destruction of documents, including with respect to electronic files

  24. Ethics and Whistleblower Policy • Ethics Policy: Board should establish ethical standards and ensure compliance and dissemination within charitable organization; Policy should describe behavior Board hopes to encourage and to discourage • Code of Ethics should communicate and promote culture of legal compliance and ethical integrity • Whistleblower: Board encouraged to establish policy aimed at effective handling of employee complaints and procedures for reporting of suspected improprieties, illegalities, misuse of charitable resources and inappropriate behavior

  25. Financial Statements and Form 990 Reporting • Financial Statements • Directors as stewards of charity’s financial and other resources • Board (or authorized committee) should conduct periodic reviews of financial statements, auditor’s letters or finance and audit committee reports • Audited Financial Statements • State law may impose audit requirements • Grantor organizations may impose requirement upon grantees • Federal fund recipients and Circular A-133 Audit • IRS encourages but does not mandate audited financial statements for organizations with substantial assets or revenue • Audit Committee: may be appropriate to ensure independence and competence of auditor, quality of audit, and independence and competence of key personnel on audit engagement team • Form 990 • Dissemination of draft 990 to governance body, management officials, board or otherwise

  26. Transparency and Accountability • Transparency and accountability to constituents attained by full and accurate disclosure of: • Mission • Activities • Finance • Governance • Forms 1023 and 990 must be available for public inspection • IRS encourages adoption and monitoring of procedures designed to ensure that Forms 1023, 990, annual reports, and financial statements are complete, accurate, posted on its public Web site and made available to the public upon request • Forms 1023 and 990 inquire about the availability of key organization documents

  27. Governance Check Sheet • In December 2009, the IRS released a check sheet to be used by IRS exempt organizations examination agents to capture data about the governance practices and the related internal controls of organizations under Examination.  • The IRS anticipates that the data collected will be included in a long-term study to gain a better understanding of the intersection between governance practices and tax compliance. • Check Sheet can be found at: http://www.irs.gov/pub/irs-tege/governance_check_sheet.pdf • Guide Sheet (for completing check sheet) can be found at: http://www.irs.gov/pub/irs-tege/governance_guide_sheet.pdf • Check sheet will be used in connection with examination of public charities.

  28. Governance Check Sheet: Issues Covered • Governing Body and Management: • Mission statement • Bylaw information on board: composition, duties, voting rights, qualifications • Availability of Bylaws and Articles of Incorporation • Frequency of board meetings • Compensation of Board Members, Trustees, key employees • Is compensation set by conflict of interest free, authorized body of the organization • Use of comparability data in setting compensation • Contemporaneous documentation of compensation determinations

  29. Governance Check Sheet: Issues Covered (continued) • Organizational Control • Family and business relationships among board members/trustees and other board members, trustees, officers, key employees • Effective control of the organization and whether concentrated among a few individuals • Conflict of Interest • Existence of policy • Coverage of recusals in policy • Annual Disclosure • Adherence to policy

  30. Governance Check Sheet: Issues Covered (continued) • Financial Oversight • Procedures to assure that assets used in accordance with mission • Independent review of Form 990 • Reporting to the Board on financial activities • Discussion by the Board of financial activities • Preparation of independent accountant’s report • Preparation of management letter by independent accountant • Document Retention • Existence of document retention policy • Adherence to document retention policy • Documentation of board meetings and retention of such documentation

  31. Form 1023 Governance Matters • Revised June 2006 • Available at: http://www.irs.gov/pub/irs-pdf/f1023.pdf (form); http://www.irs.gov/pub/irs-pdf/i1023.pdf (instructions) • Compensation Provisions • Compensation of officers, directors, trustees • Compensation of 5 highest-paid employees (receiving more than $50,000) • Compensation of 5 highest-paid independent contractors (receiving more than $50,000) • Best Practices for Compensation Determination (toward goal of preventing excess compensation): • Conflict of Interest Policy followed in setting compensation • Approval of compensation arrangements • Written documentation of approved compensation arrangements • Documentation of vote regarding compensation • Use of comparables and documentation of use of comparables

  32. Form 1023 Governance Matters • Organizational Control/Relationships • Family and business relationships between board members/trustees and other board members, trustees, officers, key employees and independent contractors • Compensation and control: disclosure of compensation received by officers, directors, trustees, highest-compensated employees, and highest-compensated independent contractors from another organization related to applicant through “common control” (i.e., overlapping boards, majority ownership interest) • Purchase of goods, services, assets and leases, contracts and agreements between organization and directors, officers, trustees, key employees and independent contractors • Fair market value • Arm’s length negotiation • Conflict of Interest Policy • “Although a conflict of interest policy is not required as a matter of tax law, we encourage adoption of a substantive conflict of interest policy because it makes it more likely that you will operate for the benefit of thecommunity and not for private interests.” (Form 1023, Instructions) • Sample Policy available in Appendix A to Instructions • Procedures for Addressing Conflict Situation • Annual Disclosure and Acknowledgement Form • Periodic Review of Compensation, furtherance of charitable purposes and financial decisions/arrangements

  33. Form 990 Governance Matters • Revised 2008 • Part VI: Governance, Management and Disclosure • Instructions to Form 990: Even though governance, management, and disclosure policies and procedures generally are not required under the Internal Revenue Code, the IRS considers such policies and procedures to generally improve tax compliance. The absence of appropriate policies and procedures may lead to opportunities for excess benefit transactions, inurement, or other activities inconsistent with exempt status. Whether a particular policy, procedure, or practice should be adopted by an organization may depend on the organization’s size, type, and culture. Accordingly, it is important that each organization consider the governance policies and practices that are most appropriate for that organization in assuring sound operations and compliance with tax law. • Governing Body • Composition • Independence • Family and business relationships among board members • Membership of organization and control thereof over board elections, decisions • Documentation of board and committee meetings

  34. Form 990 Governance Matters • Policies • Conflict of Interest Policy • Existence • Annual disclosure statement • Compliance procedures • Whistleblower Policy • Document Retention and Destruction Policy • Compensation Policy • Joint Venture Policy • Disclosure • Availability of Form 990 for public inspection • Availability of governing documents, financial statements, and policies for public inspection • Compensation of officers, directors, trustees, key employees, five highest paid employees ($100,000+), five highest paid independent contractors ($100,000+) and former officers, directors, trustees, key employees and highly compensated employees

  35. IRS Training Materials-Governance • Prepared in May 2009 by IRS for Exempt Organization examination agents, determinations specialists, tax law specialists and managers • Provides overview of IRS positions on governance issues, background and history of IRS involvement in governance debate • Reviews IRS areas of interest: • Board: active and engaged; appropriate size; independence, knowledge, and skill of directors • Documentation of actions • Policies and practices: conflicts, whistleblower, document retention and destruction, compensation, and investments

  36. Themes that Emerge from IRS Governance Materials and Guidance • Tax Compliance and Good Governance are connected • The IRS has no intention of walking away from governance • The IRS wants the nonprofit community to succeed • One size does not fit all • Transparency of policies, practices, goals, finances, etc. • The IRS cannot mandate most governance practices • The IRS can recommend governance practices and will seek explanation when governance practices are either not implemented or not followed • The IRS is continuing to develop its information and material on governance issues • This is only the beginning of the IRS’s interest in governance issues

  37. Discussion • Does the IRS belong in the governance discussion? • Should governance be confined to State Law? • Do states exercise adequate control over and provide sufficient guidance to charitable organizations? • What limits, if any, should be placed on the IRS in the governance discussion?

  38. Other Guidance • Panel on Nonprofit Sector • Convened in 2004 at urging of U.S. Senate Finance Committee • Promulgated 33 “Principles for Good Governance and Ethical Practice” in October 2007 • Legal Compliance and Public Disclosure • Effective Governance • Strong Financial Oversight • Responsible Fundraising • Issued “The Principles Workbook” in 2009 • Provide sector-wide guidance on governance principles as means of supporting self regulation • Independent Sector • State Attorney Generals

  39. Other Policies Promoting Good Governances and Best Practices • Fundraising and Grant-making • Pre-grant Due Diligence • Gift Acceptance Policy • International Grants, Activities, Investments • Anti-terrorism guidelines (U.S. Department of Treasury Voluntary Best Practices) • Confidentiality • Policies Applicable to Employees • Memorialized in employee handbook

  40. Discussion What’s Next for the IRS, the Senate Finance Committee • Governance Enforcement? • Private Foundation Rules Reform? • Jeopardy Investment Rules • Excise Tax Rules • DAFs? • Supporting Organizations? • Endowment Funds? • Venture Philanthropy Funds? • Low-Profit Limited Liability Companies?

  41. Resources • IRS Charitable Organization Web sites • www.irs.gov/charities; • www.stayexempt.org (online workshop) • Form 1023 and Instructions • http://www.irs.gov/pub/irs-pdf/f1023.pdf; • http://www.irs.gov/pub/irs-pdf/i1023.pdf • Form 990 and Instructions • http://www.irs.gov/pub/irs-pdf/f990.pdf ; • http://www.irs.gov/pub/irs-pdf/i990.pdf • Examination Governance Check Sheet and Instructions • http://www.irs.gov/charities/article/0,,id=216068,00.html • IRS Remarks on Governance (Speeches and Testimony) • http://www.irs.gov/charities/content/0,,id=184547,00.html • IRS Governance Training Materials • http://www.irs.gov/charities/article/0,,id=208454,00.html • IRS Guidance, Governance and Related Topics • http://www.irs.gov/charities/article/0,,id=178221,00.html • http://www.irs.gov/pub/irs-tege/governance_practices.pdf

  42. Resources (cont.) • Panel on the Nonprofit Sector • www.nonprofitpanel.org • Principles for Good Governance and Ethical Practice • Independent Sector • www.independentsector.org • Council on Foundations • www.cof.org • Conflict of Interest Policy: articles, samples and analysis • Board Source • http://www.boardsource.org • 2007 survey of nonprofit practices and policies • http://www.boardsource.org/clientfiles/sarbanes-oxley.pdf • The Sarbanes-Oxley Act and the Implications for Nonprofit Organizations

  43. Resources (cont.) • Governance Matters! • www.governancematters.org • Smithsonian • GAO Report, December 2009 www.gao.gov/new.items/d10297t.pdf • Attorney Jack Siegel’s Web site on Charitable Governance • www.charitygovernance.com • Provides links to news articles on governance • Senator Grassley • http://grassley.senate.gov/ • Provides Grassley’s public comments on governance matters • New York State Attorney General: “Right from the Start, Responsibilities of Directors and Responsibilities of Not-for-Profit Corporations • www.oag.state.ny.us/bureaus/charities/about.html

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