Today we have a guest post from Laurel Rogal of Klamp & Associates, a law firm dedicated to representing charitable organizations. She walks us through some of the do’s and don’ts of non-profit social enterprise.
Nonprofits are increasingly seeking alternatives to their traditional dependence on donations and grants. While such contributions are often essential sources of revenue, exclusive reliance on them may make organizations susceptible to unpredictable economic fluctuations.
Revenue-generating activities are an effective way to diversify and sustain income for charitable programs. For example, a homeless shelter may earn revenue by selling products made by its residents. An art museum may rent its building for private events such as weddings. A humanitarian organization may license its logo to a national retailer in exchange for a portion of sale proceeds.
If not done carefully, however, revenue-generating activities can have adverse tax consequences. First, the IRS may impose an “unrelated business income tax” (UBIT) on otherwise exempt organizations that regularly conduct a trade or business that is not substantially related to their charitable mission. Second, and more seriously, nonprofits that engage in a substantial amount of “commercial” activity can lose their tax-exempt status. This is because the IRS takes the binary view that activities are either charitable or commercial and considers commercial activity incompatible with 501(c)(3) status. While the IRS has broad discretion to determine which category an activity falls into, it often emphasizes (1) whether it competes with for-profit businesses and (2) whether it is priced at or above cost.
Nonprofits have three options to generate earned income without jeopardizing their exemption:
- First, nonprofits can conduct revenue-generating activities that are charitable rather than commercial in nature. This means conducting the activity in a manner distinct from for-profit businesses. For example, a microfinance activity may be considered charitable rather than commercial if it takes more risk, offers more generous terms, and/or provides more support to borrowers than commercial lenders. Likewise, a publishing activity may be considered educational rather than commercial if the charity avoids paying royalties, sells the publication through its website rather than sales agents and paid distributors, and/or subsidizes the publication with donations.
- Second, nonprofits can earn revenue that will generally be treated as an exception to the commerciality rules, such as (1) sponsorship income and (2) passive income. Sponsorship income is paid by businesses in exchange for acknowledgment as the charity’s official sponsor. Passive income includes rents, royalties, interest, and other income that accrues without ongoing activity by the charity. Please note that if either of these undertakings becomes vastly excessive in relation to the nonprofit’s actual charitable activities, the nonprofit may face IRS scrutiny and/or penalties.
- Third, nonprofits can engage in revenue-generating activities that are an insubstantial portion of the organizations’ overall operations. The IRS has considerable discretion to determine whether an activity is substantial, since this term is not defined. In some cases, an activity that amounts to 10% of the charity’s revenue may be considered substantial. Please note that, unlike the previous two options, income from an insubstantial activity may be subject to UBIT.
Nonprofits should consider these tax issues when designing and implementing revenue-generating activities. Careful planning can protect the nonprofit while increasing its capacity to serve the public good.