Charitable giving in the age of COVID-19: Frequently asked questions

Answer: This declaration releases a vast array of federal programs to assist with response and recovery to impacted states/cities. Internal Revenue Code (IRC) Section 139, which was added as part of the Victims of Terrorism Tax Relief Act of 2001, provides that gross income does not include a “qualified disaster relief payment.” Accordingly, Section 139 allows employers to aid their employees, and others, on a tax-free basis.

Answer: Section 139 says that a “qualified disaster relief payment” includes any amount paid to or for the benefit of an individual… 

1) To reimburse or pay reasonable and necessary personal, living, or funeral expenses as a result of a qualified disaster;

2) To reimburse or pay reasonable expenses incurred for the repair or rehabilitation of a personal residence or repair of its contents attributable to a qualified disaster;

3) By a person engaged in the furnishing or sale of transportation as a common carrier by reason of death or personal injuries resulting from a qualified disaster; or

4) If such amount is paid by a federal, state, or local government, or agency or instrumentality thereof, in connection with a qualified disaster to promote general welfare.

Answer: No, there is no requirement that an employer have a written policy to ensure that payments qualify for Section 139 treatment. However, having a written policy in place governing disaster relief payments would make it more difficult for the IRS to question any payment made pursuant to the policy. Suggestions of items to include in the policy are:

- Description of the eligible class or group

- List of expenses that would be eligible for payment (items as described in Section 139)

- Description of the method for reimbursement/payment and if an application is required (sample employee assistance applications are available from EOTS team members)

- Application deadline

- A per-employee maximum on grants (not required, but recommended)

Answer: The IRS has very specific guidelines as to what must be done for employers to ensure that payments to employees qualify for Section 139 treatment. Please contact a member of the EOTS team to discuss these qualifications. 

After determining that the organization may meet the IRS initial qualifications, the organization needs to legally form a separate legal entity to hold its employee assistance program (typically done through an attorney). Once formed, the new employee assistance entity will need to electronically file Form 1023 or 1023EZ to apply for tax-exempt status with the IRS. Once submitted, the application may take 6-8 weeks to be formally approved. Given the current environment, it is possible that this normal timeline may be a bit delayed.

Answer: The charitable-giving tax rules and IRS guidance do offer a path for an employer to follow for providing disaster assistance to its employees using a public charity sponsored by the employer. Where certain requirements are satisfied, the employer-sponsored charity can bestow financial assistance awards to employees affected by a disaster. The IRS listed the following principal factors for its presumption of a successful, permissible arrangement:

- Even though the employer sponsors the charity, it cannot “exercise excessive control” over the charity; 

- The charity must maintain a standard that it serves a large or indefinite “charitable class” of people. The charity achieves the “indefinite” aspect by dedicating an employee disaster-relief program for both current and future disasters; 

- Selected employees should be chosen by a committee that is independent of the employer and the employees; and

- Recipients must be chosen based on an objective determination of need.

In general, employer-sponsored public charities are entities that meet the requirements for tax exemption under IRC 501(c)(3). Therefore, the donations to the charity will be deductible pursuant to the charitable deduction rules, and the donations received by the employees will be excluded from gross income.

Answer: Employer-sponsored private foundations can provide assistance to employees during times of disaster. Generally, the giving rules are much stricter for private foundations than they are for public charities. However, for employees affected by a federally declared disaster, private foundations can be a source of relief. Essentially, the private foundation must abide by the same factors highlighted for public charities, with the main difference being that the employer can have control of the private foundation. Also of note is that recipients of these disaster-assistance awards should not themselves be directors, trustees, or officers of the foundation. With all elements present, the employer-sponsored foundation can make distributions to employees without incurring excise tax for self-dealing for itself and without burdening recipients with any taxable income.

These same general rules apply for disaster relief provided by a private foundation not associated with an employer.

Answer: This is generally referred to as direct giving. Payments that are “qualified disaster relief payments” (see above for qualifications) are generally excluded from the recipient’s or employee’s gross income and are also deductible by the employer as salary expense. Section 139 does not specify any cap but does state that the payment must be “reasonable and necessary” and must not be for an expense reimbursable by the employee’s insurance. The organization is required to maintain adequate records as to disbursement that was made directly to the employee. 

Answer: Employers can also provide assistance to employees during times of disaster through an employer-sponsored donor advised fund (DAF). Once a disaster has been given the official designation by the president as a qualified emergency/disaster, as has been done for COVID-19, the normal restriction of making payments directly to an individual through a DAF is lifted. According to the IRS, funds can be disbursed to employees based on the following criteria: 

(1) The fund serves the single identified purpose of providing relief from a qualified disaster;

(2) The fund serves a charitable class; 

(3) The recipients are chosen using either an independent selection committee or adequate substitute procedures to ensure that any benefit to the employer is “incidental and tenuous”; 

(4) No payment is made to or for the benefit of any director, officer, or trustee of the sponsoring community foundation or charity, or member of the selection committee; and

(5) The fund maintains adequate records to demonstrate the recipients’ need.

Answer: The organization can set up a separate bank account to collect funds from others and distribute to employees in need. However, these funds would not be considered charitable and the donor would not receive a charitable deduction for such payments. These payments are still required to meet the qualifications above for a “qualified disaster relief payment” to be excluded from gross income by the recipient. 

Alternatively, if the organization has already established an employer-sponsored public or private foundation, then contributions can be accepted through the foundation. Contributions would be deductible by the donor following the charitable contribution guidelines. For any contribution of more than $250, the foundation is required to send an acknowledgement to the donor.

If the organization does not have an established employee relief foundation, there are multiple crowdfunding options available to facilitate the collection of funds to give to those employees in need.

Answer: These employer-funded or employee-facilitated crowdfunded websites are generally not exempt organizations. This means that contributions to these websites/organizations are not deductible as charitable contributions. These contributions are generally considered “gifts.” The receipt by the employee should also be considered a “gift” and, therefore, excluded from gross income. GoFundMe reported that over 22,000 COVID-19 related fundraisers have been created on its platform in the past few weeks, including relief funds for Hollywood Support Staff, virtual tip jars for restaurant wait staff, and general COVID-19 relief funds.

It is important to note that some of these crowdfunding websites may charge a fee for their facilitation services. 

For more information on these charitable giving topics, see:

- IRS: Charitable Organizations Providing Disaster Relief – Questions and Answers

- IRS Publication 3833, Disaster Relief – Providing Assistance Through Charitable Organizations

The Treasury, in Notice 2020-18, postponed the April 15, 2020, due date for many taxpayers.  However, this relief does not extend to any informational filings or returns with an original due date other than April 15, so many exempt organizations have an information return that is still due on May 15. The chart below summarizes the impact of the postponed April 15 deadlines for exempt organizations.

Lori Rothe Yokobosky, CPA, MST, Partner, Exempt Organizations Tax Services Practice Leader

973.403.6940

John Alfonso, CPA, CGMA, Partner, Not-for-Profit & Education Industry Leader

646.254.7415