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VIDEO PODCAST: Assessing Independent Contractor vs. Employee Status [SUBSCRIBERS-ONLY]
Mike and Ben discuss the legal standards for determining whether a nonprofit organization is permitted to a treat a worker as an independent contractor rather than an employee, the risks of worker misclassification and the different ways this issue can come to light, the reformulated IRS “20-factor” test, common mistakes and misconceptions about these rules, and more.
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VIDEO PODCAST: Common Form 1099 Questions from Nonprofits [SUBSCRIBERS-ONLY]
Mike and Ben discuss the basics of the Form 1099 rules and address some questions that are frequently asked by nonprofit organizations related to the Form 1099, including whether nonprofits are required to comply with the Form 1099 rules, whether a 1099 is required when the payee is also a nonprofit organization, whether a 1099 is required when reimbursing Board members for expenses, the importance of timely collecting Forms W-9 and avoiding 1099 mistakes, and more.
Q&A #147 – Must a Form 1099 be issued for expense reimbursements paid to Board members and volunteers?
IRS guidance suggests that reimbursements paid to Board members and volunteers for expenses properly incurred in connection with organization functions are generally not required to be reported on Form 1099 if the expense reimbursements are made pursuant to a reimbursement arrangement that qualifies as an “accountable plan.” This is similar (but not identical) to the rules that apply to employee expense reimbursements and Form W-2 reporting.
Q&A #138 – How do nonprofits report a change of address to the IRS?
Nonprofits may, but are not required to, report a change of address to the IRS on Form 8822-B. Alternatively, a change of address may be reported on the organization’s next Form 990 by checking the “address change” box in Column B on the left side at the top of page 1.
Q&A #134 – Are pending applications for tax-exempt status subject to public disclosure requirements?
A tax-exempt organization is generally required, upon request, to make its application for tax-exempt status available for public inspection and copying (this includes the Form 1023, Form 1023-EZ, Form 1024, or Form 1024-A, as well as all supporting documents and related correspondence with the IRS). However, this requirement does not apply to applications that have not yet been approved by the IRS, so applications in “pending” status are not required to be disclosed.
Q&A #129 – Are 501(c)(3) organizations automatically exempt from state corporate income tax?
Organizations that receive IRS approval of 501(c)(3) status are almost always eligible for exemption from state corporate income tax, subject to exceptions for certain types of revenue. However, the process varies widely depending on the state and you should not assume that the exemption from state corporate income tax is automatic. In some states, this exemption automatically applies upon IRS approval of 501(c)(3) status and no additional steps are required. Other states require a separate application to be filed.
Q&A #128 – Does the tax-exemption reinstatement process require organizations to file the Forms 990 they missed?
The process for reinstating the tax-exempt status of an automatically revoked organization is described in IRS Revenue Procedure 2014-11. In short, to obtain the maximum protection of the reinstatement process, organizations must file any missed Forms 990 or 990-EZ except to the extent they: (1) were eligible to file Form 990-N during the relevant years; and (2) file for reinstatement by the 15-month deadline.
Q&A #126 – Are 501(c)(3) organizations automatically exempt from sales and use tax?
A nonprofit organization’s eligibility to qualify for exemption from sales tax (and a related tax called “use tax”) is determined by the laws and procedures of the applicable state, but in general IRS approval of 501(c)(3) status does not result in automatic exemption from sales and use tax. 501(c)(3) status is often a prerequisite for exemption from sales and use tax, but most states have a separate detailed application process for this exemption. Further, in many states the sales and use tax exemption has rigid criteria and not all 501(c)(3) organizations will qualify.
The Wrong Way to Add a Charitable Arm to a For-Profit Business
I often receive inquiries from entrepreneurs who are looking to add a philanthropic component to an existing for-profit business, such as by forming a nonprofit as a charitable arm or subsidiary of their business or starting a corporate foundation. These ideas are usually well-intentioned. However, mixing business and charitable activities too closely can make IRS approval of 501(c)(3) status an uphill battle.
Three Steps to Be Better Prepared for Public Disclosure Requests
How a nonprofit organization responds to public disclosure requests provides a clear window to its commitment to accountability and transparency. However, many organizations are insufficiently prepared to respond to requests for documents. This can lead to compliance failures and/or inadvertently sharing sensitive information that was not required to be disclosed.
Q&A #111 – How should nonprofits fill out the Form W-9?
The Form W-9 does not provide an option that clearly describes the tax classification applicable to most nonprofit organizations. I recommend checking the box for “Other” and writing in “tax-exempt nonprofit corporation” or something similar, except in the relatively rare cases in which an organization is structured as a trust or does not have a federal income tax exemption.
Q&A #108 – Can interns be paid as independent contractors?
While nonprofit organizations are usually afforded more latitude than for-profits to have unpaid volunteer interns, the decision to pay interns a stipend in lieu of employee wages raises difficult issues. Most paid interns would not fit the criteria for independent contractor treatment under the applicable laws. This means that paid interns must generally be treated as W-2 employees subject to minimum wage laws, payroll tax and withholding laws, and other requirements applicable to employees.
Q&A #96 – Must a Form 1099 be issued for a grant made to a nonprofit organization?
Grants made to nonprofit organizations are usually not subject to Form 1099 reporting because nonprofit payees typically fall within certain exceptions under the Form 1099 rules. Specifically, Form 1099 reporting is generally not required with respect to payments made to corporations or tax-exempt organizations. In this case, both exceptions probably apply.
Successful Charity Auctions Start with Careful Planning
Charity auctions are used by nonprofit organizations of all shapes and sizes. Organizations that are thoughtful with their investment in time and planning can realize major benefits from their charity auctions. However, many nonprofits commit to holding charity auctions without committing to the time, planning, and due diligence necessary to realize the most successful event possible. A poorly planned charity auction can potentially impact net proceeds received, damage the organization’s reputation, and even expose the organization to tax liabilities and other possible risks.
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CHECKLIST: Charity Auctions Done Right [SUBSCRIBERS-ONLY]
R. Michael Sorrells (CPA) and A. Michael Gellman (CPA, CGMA) jointly authored this checklist of key “Dos” and “Don’ts” to help your nonprofit optimize its charity auctions, run them efficiently and without unwanted hiccups, and be prepared to comply with key tax and legal requirements.