Being tax-exempt means no taxes and no pesky tax filing, right? The truth is the exact opposite. Every year, nonprofits file an IRS form that is more work in many ways than a standard 1120 corporate return. Nonprofits still pay many taxes. When they can be exempt from a tax, they often need to file forms to request exemptions from those taxes. Only a CPA can appreciate the need to push around so much paper.
Not-For-Profit vs. Tax-Exempt
Let’s start with some semantics. The terms not-for-profit and nonprofit refer to purpose. These organizations’ primary purpose is to provide services and other benefits to the public or their members. A for-profit organization’s primary purpose is usually to create cash from profits to distribute to owners.
State laws govern the activities of nonprofit organizations. Examples of this oversight include:
- Entity choices (i.e., association, limited liability company, or corporation) and the associated rights and obligations of each entity choice
- Charitable solicitation rules, regulations, and registrations
- State tax law
- Financial reporting requirements (e.g., states may require a financial statement audit when a nonprofit exceeds certain revenue thresholds)
This governance is conducted by each state’s secretary of state, department of revenue, and attorney general.
The term “tax-exempt” is primarily about tax status, not purpose. An organization with tax-exempt status does not have to pay certain taxes. This usually refers to exemptions from federal income tax. This status is determined and governed by the IRS.
The reason we detoured down this semantic side road is to help you understand which governmental agencies to consult for guidance on different aspects of a nonprofit’s financial operations.
Form 990
Let’s start the discussion of tax forms with an annual filing that’s frankly very onerous. I’m charitable enough (pun intended) to admit that its purpose is to help donors make informed decisions and to help the IRS reduce tax avoidance.
Form 990 has around 100 informational yes/no questions and a similar number of lines for entering financial information. The only other time a person would be subjected to this much interrogation is when sitting at a metal table in a police station with bright lights in their eyes.
Those rooms often have a two-way mirror to allow many people to hear the answers to the interrogation. The crowd behind the metaphorical two-way mirror of the 990 is us, the public. Form 990 is subject to public inspection, and libraries of them can be found on sites that rate or monitor nonprofits and the IRS. Nonprofits must provide their 990 within 30 days to anyone who requests one via writing. A person can request the 990 at the nonprofit’s place of business and is entitled to immediate access to the form.
A good page for guidance on Form 990 and to see a PDF of the form is the “About Form 990″ page on the IRS website. This link and the other links I will mention in this lesson are in the resources document provided with the course.
The questions on Form 990 cover the organization’s governance, financial transactions, and compliance with laws and regulations. Some section headings include:
- Statement of Program Service Accomplishments (as an aside, maybe tax filings will someday allow/ask for-profit companies to show how well they served their customers)
- Checklist of Required Schedules
- Statements Regarding Other IRS Filings and Tax Compliance
- Governing Body and Management
- Policies
- Compensation of Officers, Directors, Trustees, Key Employees, Highest Compensated Employees, and Independent Contractors
- Statement of Revenue, Statement of Functional Expenses, and Balance Sheet
The complexity of this form causes many nonprofits to have a CPA complete the form for them. I’m currently on the board of a small endowment whose directors include three CPAs. We use a CPA firm for our 990.
Some smaller nonprofit organizations can file a shorter version of the form. Other organizations are completely exempt from needing to file the 990, such as churches and some governmental units.
Filing Form 990 is very important for keeping your tax-exempt status. Organizations that fail to file for three years in a row lose their tax-exempt status and must apply to reinstate it. Not filing the form may also look very bad to donors and nonprofit monitoring sites. Worse, donations to an organization that is not tax-exempt are not deductible by the donor. Donors may withhold funding if they cannot receive a deduction.
As noted earlier in this course, Form 990 asks if the board received the form before filing and the process for reviewing it. It’s a good idea to have this process in place so you can say the right things in those form boxes. Financial professionals on the board have the background to catch any errors that the preparer may have made. The board should also look at the form with the eyes of the donor to make sure it represents the organization well. Remember, there is even a section on the form where the nonprofit can brag a little about accomplishing its mission.
Unrelated Business Income Taxes (UBIT)
Do tax-exempt organizations sometimes need to pay income tax? Yes. These organizations don’t pay taxes on funds and activities that support their tax-exempt mission per IRS code, but they do pay taxes on activities that are similar to for-profit businesses. These taxes are called unrelated business income taxes (UBIT), and the related revenue creates unrelated business taxable income (UBTI). The dollar amount of these activities and the related tax calculation are reported on Form 990-T. UBTI is:
- From a trade or business
- That is regularly carried on
- That is not substantially related to the purposes which form the basis of the organization’s tax-exempt status.
Nonprofits must be very careful and consider whether any new revenue streams would be taxable. It’s easy to see everything as part of the services of the organization, but some are taxable. Some examples of activities that may be subject to UBIT include:
- Providing services to other organizations
- Corporate sponsorships that provide substantial benefits to the sponsor
- Parking fees
- Venue rental
- On-site restaurants
- Retail stores
For example, I worked at a nonprofit that provided administrative services for a smaller nonprofit. Funds from this are UBTI.
For more information about UBIT, check out the unrelated business income tax page on the IRS site.
Political and Lobbying Activities
No organization may qualify for section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying). A 501(c)(3) organization may engage in some lobbying, but too much lobbying activity risks loss of tax-exempt status. To learn more about this, check out the IRS lobbying rule for charitable organizations page.
The prohibition of lobbying also applies to some organizations that are tax-exempt under other parts of Section 501. More information can also be found on the political campaign intervention page.
Payroll Taxes
Tax-exempt organizations still must pay many of the standard payroll taxes. This includes Social Security, Medicare, and unemployment taxes. However, an organization that is exempt from income tax under section 501(c)(3) of the Internal Revenue Code is also exempt from federal unemployment tax (FUTA). Some religious members or workers are exempt from the social security tax but then are not eligible for benefits.
Board members can become subject to penalties for organizations that don’t pay employment taxes. The board needs to make sure these are getting paid.
Nonprofit organizations must also follow the same reporting (e.g., Form 5500) and audit requirements as for-profit organizations for retirement plans.
Excessive Executive Compensation
The IRS can fine organizations that it considers to be paying excessive compensation to executives. Three steps an organization can use as a “safe harbor” to prevent this is to:
- Have an independent committee set compensation
- Compensation must be comparable to similar positions at other organizations based on a salary survey
- Maintain written documentation of the committee meeting decisions
These procedures can also protect the organization from charges of impropriety by the media if someone ever wanted to claim that company salaries were excessive.
State Income, Excise, Sales, and Use Taxes
Every state differs on what state taxes apply to nonprofits. Check with your state’s Department of Revenue or Secretary of State to determine which state taxes apply to your organization. You may need to make filings to obtain a state tax exemption.
Local Taxes
In the state where I live, some nonprofits must pay property taxes, and some don’t. Some have to have a business license, and others don’t. The safest route may be to assume that you must pay a tax and then research if your organization is exempt.
For more info, check out these topics pages: