November 29, 2022

Volume XII, Number 333


November 28, 2022

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IRS Publishes Final Regulations for Equivalency Determinations

Take note of these practical concerns for private foundations making grants to foreign organizations.

On September 25, the Internal Revenue Service (IRS) published final regulations for private foundations making good faith determinations that a foreign organization is equivalent to a public charity (other than a Type 3 nonfunctionally integrated supporting organization) or a private operating foundation.

These regulations

    finalize the provision in proposed regulations expanding the class of professional tax advisors able to provide reliance opinions for foundations making good faith determinations,
    delete provisions allowing foundations to rely solely on grantee affidavits in making equivalency determinations, and
    provide that an equivalency determination will generally be valid for two years.

Good Faith Determinations Under Code Sections 4942 and 4945

Under current law, private foundations making grants to foreign organizations that do not have IRS determination letters recognizing their 501(c)(3) public charity status can meet their obligations under sections 4942 and 4945 by following procedures for making a good faith equivalency determination.

Proposed Regulations to Facilitate Foreign Grantmaking

Longstanding regulations provided that foundations would ordinarily be considered to have made a good faith determination if the determination was based on an affidavit of the grantee or an opinion of counsel. On September 25, 2012, the IRS published proposed regulations intended to facilitate grantmaking by foundations to foreign organizations by making it easier and less costly for foundations to obtain written equivalency determinations from qualified advisors. The proposed regulations expanded the class of advisors upon whose advice foundations can rely to include certified public accountants (CPAs) and enrolled agents subject to the requirements of IRS Circular 230, as well as lawyers. Circular 230 sets standards for practice before the IRS. The proposed regulations also requested comments on (1) the appropriateness of a time limit for reliance on an affidavit or written advice, (2) whether reliance on grantee affidavits should be restricted, and (3) whether Revenue Procedure 92-94, which provides additional guidance for foundations making good faith determinations, should be updated.

The newly issued final regulations are generally consistent with the proposed regulations but include a few important changes.

Final Regulations Retain Expanded Advisor Class But Restrict Grantee Affidavits

Consistent with the proposed regulations, the final regulations retain the expanded class of advisors on whose advice foundations can ordinarily rely when making good faith equivalency determinations. Foundations can rely on advice from qualified tax practitioners, including lawyers who serve a foundation’s in-house or outside counsel, CPAs, and enrolled agents who are subject to Circular 230. The class does not include foreign lawyers, except in the unlikely event that they meet the definition of “qualified tax practitioner” subject to Circular 230. Of course, foreign counsel may be used to gather information relevant to the determination or for questions of foreign law or other matters within the foreign counsel’s expertise.

As foreshadowed by the proposed regulations’ request for comments, the final regulations eliminate reliance on a grantee affidavit as a sole basis for making a good faith equivalency determination. Grantee affidavits may continue to be used as a source of information in making a good faith determination, and there is no requirement that a foundation obtain written advice from a qualified tax practitioner. To mitigate the effects of this change, the final regulations provide a 90-day transition period during which foundations may make grants based on the proposed regulations. Also, a grant that is distributed pursuant to a written commitment made prior to the effective date of the final regulations and based on a good faith determination under the proposed regulations will be treated as compliant as long as the grant is fully funded within five years.

Finally, the final regulations provide that foreign equivalency determinations regarding public charity status based on support over a five-year test period can be relied on for the two years immediately following the end of the test period. 

Rev. Proc. 92-94

The IRS also announced that it intends to update Rev. Proc. 92-94. Rev. Proc. 92-94 contains details regarding the process for making equivalency determinations. We expect the update to include the changes implemented in these regulations and prior changes to the public support tests made in 2011 to reflect the redesigned Form 990. 

Practical Considerations

Foundations that have relied solely on grantee affidavits in making equivalency determinations need to consider their options for making such determinations in the future. These may include using in-house or outside counsel for providing equivalency opinions, exploring options like NGO Source as potential opinion providers, and, in appropriate cases, making good faith equivalency determinations without opinions. The latter option may be particularly appropriate for grants to established foreign charitable organizations. These may include foreign academic institutions, humanitarian organizations, and international research institutions, among others. Foundations may wish to consult with in-house or outside counsel about how to establish reasonable and cost-effective procedures for making good faith equivalency determinations going forward.

Copyright © 2022 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume V, Number 278

About this Author

Celia Roady, Morgan Lewis, tax lawyer

Celia Roady counsels tax-exempt organizations on tax and governance issues. Charities, foundations, colleges and universities, museums, and other nonprofits are among her clients. She regularly advises private foundations and public charities on operational and programmatic issues, including the structuring of complex grants, program-related investments, joint ventures and collaboration arrangements. Tax-exempt organizations turn to Celia for advice on issues such as executive compensation, private foundation excise taxes, unrelated business income, corporate...

Shira M. Helstrom, Morgan Lewis, Tax regulation lawyer, Corporate Governance Attorney

Shira M. Helstrom helps tax-exempt organizations navigate the complex state and federal tax rules and regulations applicable to them. She advises nonprofit organizations on tax compliance, corporate governance and regulatory matters. Clients include both large and small public charities and private foundations, trade associations and social welfare organizations, including corporate foundations, supporting organizations, scientific and medical research organizations, educational organizations, humanitarian organizations, religious and other nonprofit organizations.

Matthew Elkin, tax and corporate lawyer, Morgan Lewis

Matthew R. Elkin focuses his practice on tax and corporate matters affecting tax-exempt organizations, with an emphasis on transactional matters such as charitable investment funds, social enterprises, impact investing, and endowment investment programs and policies. He regularly represents private foundations, trade associations, healthcare organizations, colleges and universities, international development organizations, and medical research organizations. These organizations also turn to Matt for counsel in governance.

Alexander Reid, Tax attorney, Morgan Lewis

Alexander L. Reid advises tax-exempt organizations in planning, structuring, and transactional matters. He also represents taxpayers under audit, and helps organizations improve their governance and enhance their tax compliance. Alexander counsels taxpayers seeking administrative guidance from the Internal Revenue Service (IRS) and US Department of the Treasury, as well as on legislative matters with the US Congress. His tax-exempt clients include charities, foundations, colleges and universities, museums, and other nonprofit organizations.

Kimberly Eney, Morgan Lewis, Tax Attorney
Of Counsel

Kimberly Eney advises tax-exempt organizations on the tax and corporate laws integral to advancing their missions. Her clients include major private foundations, family foundations, media and sports organizations, museums and cultural associations, community and economic development organizations, colleges and universities, hospitals, scientific and medical research organizations, social welfare organizations, business leagues and trade associations, churches and religious organizations, and many other types of special-purpose organizations.​​