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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 #137 – Is an amended Form 990 required to correct a minor error or omission?
Tax-exempt, nonprofit organizations are required by law to file Forms 990 that are complete and correct, but there is no affirmative legal duty to file an amended Form 990 to correct a newly discovered error or omission. While an organization may wish to file an amended Form 990 to manage public perception, show transparency, or mitigate the risk of penalties, this step may not be worth the cost and effort in the case of an inadvertent good-faith mistake like the omission of a single, volunteer Board member.
Q&A #136 – Is good cause required to remove a nonprofit Board member?
A nonprofit organization’s Bylaws generally determine whether “cause” is required to remove a Board member and, if so, what type of conduct or inaction constitutes cause for removal. The applicable state nonprofit corporation statute may have some rules and guidelines related to the removal of directors, but these laws usually defer to the organization’s Articles of Incorporation and Bylaws, so checking your own governing documents is always the first step.
Q&A #135 – Must directors who left the Board mid-year be listed in the Form 990?
The IRS instructions for Part VII, Section A of the Form 990 provide that any director or trustee who “served at any time during the organization's tax year” is reported as a “current” director or trustee. In other words, Board members who step down in the middle of the year must appear on the list of directors, officers, key employees, and other individuals reported in Part VII, Section A of the Form 990.
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 #133 – How does delegation to a committee impact the fiduciary duties of Board members?
While delegating a matter to a committee does not totally absolve the other Board members from their fiduciary duties, there is usually no explicit requirement that the Board retain final approval authority over day-to-day transactions. Further, state nonprofit corporation law typically provides favorable treatment to Board members who properly and reasonably delegate a matter to a committee of other qualified and experienced Board members.
Q&A #132 – Does every nonprofit committee need to have a charter?
All nonprofit committees should have documentation describing their purpose, authority, membership, and basic meeting and recordkeeping requirements. A committee “charter” is the most common term used to describe this document, which is also sometimes described less formally as the committee’s “job description.” What you call the document is less important than ensuring that there are records containing this essential information.
Q&A #131 – Do nonprofit committees need to be listed in the Bylaws?
As a general rule, it is not strictly necessary to list or reference every committee in a nonprofit organization’s Bylaws unless there are provisions in the organization’s Articles of Incorporation or Bylaws specifying this requirement. Rather, a Board motion or resolution is usually sufficient to form a new committee, so long as proper records of the Board action are maintained.
Q&A #130 – Is monthly distribution of financial reports to the Board a best practice?
Monthly distribution of financial reports to the Board and finance committee is absolutely a best practice for nonprofit organizations, and I also recommend this as a must-have procedure in your accounting policies and procedures manual. Board and finance committee members have a fiduciary responsibility to help oversee and ensure the safety and proper use of a nonprofit organization’s financial assets. Monthly financial reports are a key tool for fulfilling this important role.
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 #127 – What happens when an organization’s nonprofit corporation status is revoked?
Revocation of an organization’s status as a “nonprofit corporation,” which is often called “administrative dissolution” or “termination,” has numerous consequences that warrant immediate attention, but this is separate and distinct from revocation of federal tax-exempt status. Thus, revocation of an organization’s nonprofit corporation status does not mean that its 501(c)(3) status has been revoked.
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.
Q&A #125 – Are in-kind contributions by Board members considered conflict of interest transactions?
Nonprofit conflict of interest policies are generally aimed at ensuring the organization’s assets are not used to provide excessive benefit to the people who run the organization. While purely donative arrangements (such as providing free office space to the organization) are not typically considered conflict of interest transactions, it is best to err on the side of full disclosure and review by independent Board members because individuals sometimes benefit from these transactions in ways that are not immediately apparent.
Q&A #124 – Can the volunteer exception to the unrelated business income tax (UBIT) apply if the business is partially run by paid staff?
Under section 513(a)(1) of the Internal Revenue Code, an activity that otherwise meets the definition of an “unrelated trade or business” does not trigger unrelated business income tax (UBIT) if “substantially all the work in carrying on such trade or business is performed for the organization without compensation.” Having paid staff does not disqualify an organization from using the volunteer exception if paid staff’s role in the activity is sufficiently minimal that the “substantially all” standard is still satisfied.