What is a disqualified person for private foundations?
A "disqualified person" refers to an individual or entity with close ties to a foundation, often labeled a 'foundation insider.' Defined under the Internal Revenue Code in Section 4946, this designation can extend beyond individuals to include various entities such as corporations, partnerships, and trusts. Disqualified persons are typically positioned to exert significant control or influence over the foundation. Due to this potential for influence, disqualified persons are generally prohibited from engaging in most financial transactions with the foundation under the self-dealing rules. These rules are in place to prevent foundations from being exploited for personal gain and to ensure they remain dedicated to their philanthropic mission.
Identifying Disqualified Persons in Private Foundations:
1. Foundation Managers: This group encompasses officers, directors, trustees, managers, and others in positions of power or responsibility within the foundation. Employees of the foundation may also be disqualified persons if they hold a position of authority.
2. Substantial Contributors: This category includes individuals or entities that have provided significant financial support to the foundation. Specifically, it refers to those who have donated more than 2% of the foundation's total lifetime contributions, provided this amount exceeds $5,000. This category can extend to various legal entities, such as corporations, partnerships, and trusts. Once an individual or entity qualifies as a substantial contributor, they retain disqualified person status permanently unless certain conditions are met. If neither the substantial contributor nor their family members have made a contribution or been involved as a foundation manager for a 10-year period, and the IRS determines their contributions are insignificant compared to another donor's, their disqualified person status may lapse.
3. Family Members: Relatives of a disqualified person are often classified as disqualified persons as well. This includes the disqualified person’s spouse, ancestors (such as parents and grandparents), descendants (such as children and grandchildren), and the spouses of those descendants. Siblings, however, are notably excluded from this definition. Despite this exclusion, siblings can still be considered disqualified persons if they jointly control an entity along with other disqualified persons or if they hold a foundation management position.
4. Owners of Substantial Contributor Entities: This category encompasses owners of businesses that make significant contributions to a foundation (and controllers of other entities). Such owners become disqualified persons if they exercise control over more than 20% of the voting power of the contributing business or entity. For example, if Golden Goose Enterprises, a major donor to a private foundation, falls into the disqualified person category due to its hefty charitable donations, the individuals owning this business are similarly considered disqualified persons if they have sufficient voting power.
5. Controlled Entities: Entities like corporations, partnerships, and trusts are classified as disqualified persons if they fall under the influence of other disqualified entities. Specifically, this occurs when 35% or more of their voting power or beneficial interest is controlled by disqualified persons. For example, if Richie Rich is a disqualified person due to substantial contributions to a foundation, this designation may also apply to any business he owns. If he, together with other disqualified persons, collectively holds more than 35% control of a business, that business is then also considered a disqualified person. Importantly, the term "collective control" emphasizes that the IRS focuses on the combined ownership or influence of related disqualified persons. This means that Richie Rich may not need to individually control 35% of the business for it to qualify; the business becomes disqualified if multiple disqualified persons (e.g., Richie and his descendants or other related parties) together exceed the 35% threshold.
6. Government Officials: Certain high-ranking U.S. government officials also fall into this category based on their office or position.
Broader Implications of Disqualified Persons
Disqualified persons are subject to strict restrictions under self-dealing rules, which are designed to prevent improper financial transactions between them and the foundation. These prohibited transactions include, but are not limited to, selling, leasing, or lending money or property, as well as providing excessive compensation. Such rules are crucial for safeguarding the foundation's assets and ensuring that its activities remain focused on its philanthropic mission. However, some interactions between the foundation and disqualified persons may be permissible under specific circumstances; more details about these exceptions can be found in our supplemental write-up on self-dealing.
Engaging in self-dealing can have serious consequences. Excise taxes are imposed on disqualified persons who violate these rules, with an initial tax of 10% of the amount involved. If the issue is not promptly corrected, an additional tax of 200% may be applied. Foundation managers who knowingly approve such transactions may also face a 5% excise tax on the transaction amount. Beyond these taxes, corrective actions are required to address self-dealing violations. For example, any improperly used funds or assets must be returned or restored in full to the foundation, ensuring no financial loss occurs.
The stakes for compliance are high. Repeated violations of the self-dealing rules can jeopardize the foundation’s tax-exempt status, severely impacting its ability to operate and fulfill its mission. To mitigate these risks, private foundations are strongly advised to implement robust policies and procedures for identifying disqualified persons and monitoring their transactions. By proactively preventing self-dealing, foundations can maintain compliance with IRS regulations, protect their assets, and preserve their reputation.
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