Many nonprofit organizations with which you may be familiar have names that contain the word “Foundation”. However, in many cases these organizations are not foundations in the legal sense, but rather are public charities. While both private foundations and public charities are 501(c)(3) organizations, there is quite a substantial difference between the two types of entities.

 Traditionally, the Internal Revenue Service classifies an organization described in Section 501(c)(3) of the Code as a private foundation unless the organization can demonstrate that it qualifies as a public charity. Because there are different rules that apply to public charities and private foundations, it is important to be able to identify whether an organization is a public charity or a private foundation.

 Unlike private foundations, which normally receive substantially all of their contributions from relatively few sources, such as a wealthy individual or corporation, and often rely on investment earnings as their source of ongoing support. A public charity, on the other hand, is either “publicly supported” (deriving a substantial portion of its financial support from the public) or functions to support one or more organizations that are classified as public charities. Specifically, an organization may qualify as a “publicly supported” organization because it does one or more of the following:

•Carries on specific exempt activities, which are religious, educational, scientific, or charitable in nature

•Is supported substantially by financial support from government agencies and/or the general public.

•Is supported substantially by contributions and gross receipts from its exempt activities, and does not receive more than one-third of its support from investment income.

•Is organized and at all times thereafter operated exclusively for the benefit of, to perform the functions of, or to carry out the purposes of one or more specified publicly supported organizations. Organizations described in this paragraph are called “supporting organizations”.

 Because the private funding and private control of a private foundation increase the likelihood that the foundation will improperly benefit those who control the foundation, the Code subjects a private foundation to certain requirements and restrictions that are not applicable to public charities. For example, private foundations are subject to a tax on net investment income. In addition, private foundations are subject to excise taxes for failing to take certain required actions or for taking certain prohibited actions.

 Most notably, private foundations are required to make annual distributions equal to 5 percent of the aggregate fair market value of all assets of the organization, and are prohibited from the following:

•Engaging in acts of “self-dealing” with certain persons
•Having excess business holdings
•Making jeopardizing investments
•Making certain prohibited international expenditures

 Finally, the deductibility for federal income tax purposes of contributions to a private foundation is subject to certain limitations that do not apply to contributions to public charities. For example, the amount of contributions to private foundations that may be deducted for any year generally may not exceed 30 percent of an individual′s adjusted gross income for the year, while contributions to public charities may be deducted up to 50 percent of the AGI.

 Since the elimination of the advance ruling period, the IRS will review annual information returns annually and make bi-annual status rulings. Thus, nonprofits will have to be extra diligent in monitoring their funding sources and activities if they wish to retain their specific classification as either a private foundation or public charity.

On a day to day basis I have dealings with a variety of nonprofit organizations, and have discovered one pressing issue that seems to be faced by all organizations, startup and established, big and small-conflicts of interest. Because conflicts of interest can be a serious threat to both an organization′s reputation and their exempt status, administrators must be diligent in avoiding and addressing potential conflicts. The key for nonprofit boards is not to try to avoid all possible conflict-of-interest situations, but to identify and follow a process for handling them effectively. How an organization manages conflicts of interest and assures open and honest deliberation affects all aspects of its operations and is critical to making good decisions, avoiding legal problems and public scandals, and remaining focused on the organization′s mission.

 The nonprofit sector depends on the spirit of volunteerism displayed by board members′personal and professional knowledge, experience, and community engagement. These board members can, however, face challenges in carrying out their board responsibilities because of the number and breadth of associations and connections they have. Therefore, nonprofit board members and executives must not only be able to recognize potential conflicts of interest, but they must determine when these conflicts present areas of concern and what to do about them.

 While most people say they understand conflict of interest, most people cannot articulate a clear and general statement. They may be able to give extreme examples but cannot identify potential conflict in more mundane circumstances. A useful way of looking at conflict of interest is to turn it around and say that directors should avoid any self-serving conduct. If it benefits the director then the action is suspect. Most theorists allow that if the action benefits everyone in the community then it is not self-serving.

 In order to help the board of directors understand and avoid conflicts of interest the board should develop or adopt a written expression of its intentions. Board members should remember that a written code serves as a guideline. It cannot replace careful consideration and an ethical approach. Each member of the Board should be required to acknowledge acceptance of the policy on an annual basis, and the policy should be reviewed at the initiation of all Board meetings. Finally, keep these things in mind to help you assure that your organization does not face potential conflict:

• Full Disclosure to the board – Since when most conflict situations arise only a couple of people in an organization know, full disclosure can establish good faith among boards.
• Distancing Oneself From Potential Conflicts – A Board member should excuse himself from portions of the meeting that may lead to any potential conflict, in addition to abstaining from voting on matters that may pose a conflict.
• Best Interests In the Forefront – Create an arrangement that decides with out ones′ involvement in certain discussions, that the best interests of the organization, not that board member, will be emphasized.
• Compensation – If a board member is compensated in any way by a nonprofit, make sure their pay is either fair market value or less, a common mistake among boards.