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Federal Nonprofit Policy Updates

Posted By: Madeleine McGee Advocacy ,

Updates on Congressional legislative action.

Compiled using material from the National Council of Nonprofits and the North Carolina Council of Nonprofits. 

Advocacy efforts regarding pending legislation can be found on Speaking Together.


Senate Bill S. 4001 introduced - June 19

Senator Tim Scott (R-SC), and a bipartisan group of six senators introduced the Protecting Nonprofits from Catastrophic Cash Flow Strain Act, to help nonprofits, remain financially viable during the COVID-19 pandemic.  The CARES Act only covers 50% of the costs of unemployment claims for nonprofits that self-insure and the Labor Department requires 100% payments upfront. This new bill, S. 4001, corrects the second problem. 

U.S. House Bill Would Improve UI Process for Self-Insured Nonprofits - June 18
A new U.S. House of Representatives bill (H.R. 7066) would partially fix the unemployment payments challenge for reimbursing nonprofits. Specifically, the bill clarifies that self-insured nonprofits do not have to pay 100% of their unemployment bill upfront and wait for repayment from the state. This would fix problematic guidance from the U.S. Department of Labor requiring nonprofits to fully reimburse states for the costs of their COVID-19 related UI claims and then seek reimbursement of their reimbursement
Congressional Committee Considers Expanded Universal Charitable Deduction -June 12
This week, the Congressional Joint Economic Committee held a hearing on Supporting Charitable Giving during the COVID-19 Crisis. During the hearing, six U.S. Senators (three Democrats and three Republicans - including Senator Tim Scott) described plans for their bill to greatly expand the above-the-line deduction for charitable contributions that was included in the CARES Act.
The current universal charitable deduction is limited to $300 per year and only applies on 2020 taxes. The six Senators are proposing a much larger deduction (with caps of $4,000 for individuals and $8,000 for married couples filing jointly) that also could be applied to 2019 taxes (creating an incentive for more immediate charitable contributions, since 2019 tax returns are now due on July 15, 2020). 

Bill Signed to Improve PPP Loan Program - June 5th

The President signed into law a bipartisan bill (H.R. 7010) to strengthen the PPP. Among other things, the bill:

  • Extends PPP loans through December 31;
  • Extends the deadline for borrowers seeking loan forgiveness to rehire employees until December 31, 2020;
  • Expands the covered period for loan use from eight weeks to 24 weeks; and
  • Replaces the SBA’s rule that at least 75% of the forgivable funds from PPP loans must go to payroll expenses with one that allows up to 40% of funds to be used for non-payroll expenses.
IRS Releases Guidance on Refundable Payroll Tax Credits for Emergency Leave - Late May
The Internal Revenue Service released a new fact sheet on the refundable tax credits that nonprofits and other employers can claim when paying for sick leave or family and medical leave pursuant to the Families First Coronavirus Response Act. The fact sheet address questions about covered employees, sick leave requirements and the credit, how to claim the credits, and recordkeeping.
IRS Ends Donor Disclosure Requirements for Non-501(c)(3) Nonprofits - Late May
The IRS released final regulations eliminating donor disclosure requirements for non-charitable tax-exempt organizations. The final regulations remove the longstanding requirement that non-charitable tax-exempt organizations, such as 501(c)(4) social welfare organizations, disclose – on a confidential basis – the names of their donors and amounts given. Charitable nonprofits continue to submit the Form 990 Schedule B Schedule of Contributors, as required by the Internal Revenue Code.
Together SC supports the public comments of the National Council of Nonprofits opposing this rule change.

Internet Regulator Blocks Sale of Dot-Org Domain to Private-Equity Firm - May 1

Congress Approves Bill to Reopen Paycheck Protection Program - April 23
The U.S. House of Representatives approved legislation to provide $310 billion in additional funding for the Paycheck Protection Program (PPP), which ran out of funding last week. Together SC has heard from many nonprofits that have applied for (or attempted to apply for) this emergency relief program, which allows for forgivable loans for nonprofits and small businesses to pay for up to eight weeks of payroll expenses and other operational costs.
Financial institutions could begin processing PPP loans again as soon as the 27th of April. If your nonprofit is still seeking a PPP loan, we strongly encourage to contact your financial institution as soon as possible to apply. If your organization has a pending application, you can contact the lender to see whether you need to update your application to be eligible for the additional PPP funds. 
The latest PPP funding bill sets aside $30 billion of the funding to be used by community development financial institutions (CDFIs), credit unions, and banks with less than $10 billion in assets. This provision is intended to provide greater access to PPP loans to nonprofits and other entities that had difficulty securing loans in the initial round of PPP funding. Many nonprofits – and businesses in communities of color – have better access to CDFIs and credit unions than to larger banks. However, there are concerns that much of the $30 billion set-aside will be used by banks with less than $10 billion in assets, potentially providing minimal additional support to financial institutions serving nonprofits.
In addition to replenishing funding for PPP, the bill adds $50 billion in funding for the Economic Injury Disaster Loan (EIDL) program (which are not forgivable) and $10 billion for EIDL advance grants. It also provides $75 billion in additional funding for hospitals and $25 billion for COVID-19 testing.

April 10 Update

Form 990 Due Date

As reported earlier, the IRS announced today that it is extending to July 15 relief to all taxpayers that have a filing or payment deadline falling on or after April 1, 2020, and before July 15, 2020. The announcement, Notice 2020-23, identifies the Form 990-T return for unrelated business income taxes, the Form 990-PF excise tax payments and return, and Form 990-W estimated UBIT form, among others. Although the news release and Notice don’t say so expressly, the annual Form 990 filing deadline is also delayed by operation of this notice and a pre-pandemic decision.

Mid-Size Loan Program

The Treasury Department announced the initial details about its progress in implementing the portion of Section 4003 of the CARES Act calling on the Secretary to “endeavor” to create a loan program for nonprofit and for-profit employers with between 500 and 10,000 employees. In a news release, Treasury said that it is setting up the Main Street Business Lending Programthat will apply to employers with up to 10,000 employees or annual revenues of less than $2.5 billion. Notably, the Department is removing the 500-employee floor so smaller organizations can also apply. It’s setting up two programs, the Main Street New Loan Facility and the Main Street Expanded Loan Facility. The Federal Reserve would oversee loans of at least $1 million and a maximum of $25 million (New) or $150 million (Expanded). Loans would have a four-year maturity and would not be forgivable. Details of the program are still in process. The Fed is asking for recommendations/input up until April 16 at

https://www.federalreserve.gov/apps/contactus/feedback.aspx?refurl=/main/.

March 31 Update

In rapid succession over the last two weeks, Congress passed and the President signed two far-reaching pieces of legislation designed to provide relief to the American people and businesses – including nonprofits. Included in the provisions of these bills are major victories for nonprofits, operational relief, and new obligations.
 

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) passed in late March authorized more than $2 trillion in spending to inject cash into the economy, businesses, and nonprofits. There is a great deal to unpack:

  • Mandated paid sick and family leave and refundable payroll tax credits
  • Generous loan funds for small (< 500 employees) and mid-size (between 500 and 10,000 employees) nonprofit employers; which program is best for your organization?
  • Above-the-line or universal charitable deduction available for 2020
  • Employee retention refundable tax credit
  • Expanded unemployment and enhanced funding for social support programs
Four provisions of the bill are of particular importance to charitable nonprofits:
  1. Most nonprofits with fewer than 500 employees will have access to forgivable small business loans to nonprofits with 500 or fewer employees that will allow them to cover the costs of payroll, operations, and debt service during the COVID-19 crisis. These loans, known as SBA 7(a) loans, will be forgiven for organizations that maintain their staff between March 1 and June 30, essentially turning them into grants. 
  2. The bill includes significant unemployment relief for workers and (partially) for many nonprofits. Workers who lose their jobs for Coronavirus-related reasons – including employees of churches, religious nonprofits, and small charitable nonprofits (under four employees) – will be eligible for $600 per week of supplemental unemployment benefits (paid by the federal government). The federal government will also pay for half of the unemployment claims of self-insured nonprofits, leaving these organizations responsible for reimbursing states for the other half of these costs.
  3. Regardless of whether they itemized, taxpayers can use a (limited) universal charitable deduction for 2020, capped at $300 per year. The bill also strengthens incentives for businesses and high-income Americans to give more generously to support the work of nonprofits. 
  4. To help preserve jobs and businesses, Congress included a wide variety of appropriations that will help many types of nonprofits
The CARES Act also includes direct payments to Americans, including payments to adults of $1,200 and $500 per child ($3,400 for a family of four) to be sent out by mid-April. The amount of the payments phases out for high-income adults
 
The Families First Coronavirus Response Act passed in mid March created new workplace obligations for employers and expanded supports for individuals affected by the COVID-19 pandemic.
 
Among other things, the law provides significant refundable emergency paid sick leave and family and medical leave benefits, which should provide some immediate help to nonprofits and their employees. Details include:
  • Two weeks of emergency paid sick leave: The law requires employers with fewer than 500 employees (including nonprofits) to provide their employees two weeks of paid sick leave, paid at the employee’s regular rate, to quarantine or seek a diagnosis or preventive care for the Coronavirus. It also requires payment at 2/3 the employee’s regular rate to care for a family member for those purposes or to care for a child whose school has closed or child care provider is unavailable due to the Coronavirus. These provisions expire at the end of December 2020.
  • 12 weeks of emergency family and medical leave: The law expands the number of workers who can take up to 12 weeks of job-protected leave under the Family and Medical Leave Act for Coronavirus-related reasons. After the two weeks of emergency paid leave (above), employees of employers with fewer than 500 employees will be eligible to receive at least 2/3 of each employee’s usual pay. Employees must have been employed for at least 30 days to qualify and meet a “qualifying need related to a public health emergency.” The qualifying reasons for the emergency paid leave are caring for a child if the child’s school or childcare center is closed due to Coronavirus. The provisions also expire at the end of 2020.
  • Reimbursable payroll tax credits: Employers – including nonprofits – paying for the mandated paid leave are entitled to claim a refundable tax credit. Specifically, the tax credit is allowed against the employer portion of payroll taxes, and any paid leave costs that exceed the amount of payroll taxes owed will be refundable to the employer at the end of each quarter. 

 February 29 Update 

Fixing the Rules on Federal Government Grants with Nonprofits
Governments rely on nonprofits to provide services to individuals at all stages of their lives. But governments are not always good partners when it comes to hiring and reimbursing nonprofits for the costs of providing those services. The federal Office of Management and Budget (OMB) recently proposed revisions to the primary law governing government grantmaking – the OMB Uniform Guidance. These changes could result in greater reimbursements for indirect costs, reduced administrative burdens, and increased transparency. 
 
Many nonprofits are asking: What would these changes mean? Do the revisions go far enough? Is there anything I can do to make things better?
 
New Resources Provide Fiscal and Policy Snapshots of South Carolina and Other States
 
The Urban Institute recently released fiscal briefs for all 50 states and the District of Columbia. These fiscal briefs – including the one for South Carolina – provide an overview of the state budget, sources of state and local revenue, and economic and demographic trends. These resources may be helpful tools for nonprofits to understand the overall state policy environment in North Carolina and how it compares to other states.

February 14 Update 

President Trump Recommends Steep Cuts to Safety Net Programs in Budget Proposal

On Monday, President Donald Trump began the annual federal budget process by releasing his budget proposals for FY2021 that begins on October1, 2020. The documents released by the White House call for steep cuts to many safety net programs, including Medicaid, Medicare, Supplemental Nutrition Assistance Program, and Temporary Assistance for Needy Families. Although anxiety-inducing for many nonprofits, the reality is that the President’s proposals are only a wish list and are extremely unlikely to be passed by Congress this year.

IRS Guidance Expected on Silo-ing of Unrelated Business Income Tax

Next month, the IRS is expected to issue final regulations on unrelated business income taxes on separate trades or businesses. The 2017 federal tax law changes added Section 512(a)(6) to the Internal Revenue Code. This new subsection requires nonprofits to calculate taxes on a business-by-business basis, rather than aggregating all revenues and expenses and paying the tax only on the profit of the whole. The National Council of Nonprofits submitted public comments on the IRS’s original proposed regulations with suggestions for ways they could be improved.

New IRS Guidance Suggests that 501(c)(3) Subsidiaries Cannot Form PACs

Last month, the IRS issued a private letter ruling that suggests that a 501(c)(3) hospital system would be engaged in impermissible political activity if its for-profit subsidiary created a political action committee (PAC) that solicited funds from hospital employees. Charitable nonprofits are, of course, not permitted to engage in partisan political activities like making campaign contributions or supporting or opposing candidates for office. While this ban on electioneering means that it is impermissible for 501(c)(3) nonprofits to form PACs, some charitable nonprofits have related 501(c)(4) social welfare organizations that are allowed to participate in the political process. Some observers wonder whether the latest IRS ruling, which is not binding precedent, could call into question the common practice of the creation of PACs by 501(c)(4) organizations that have an affiliated 501(c)(3) nonprofit.

IRS Holds Hearing on Donor Disclosure Requirements for Non-501(c)(3) Organizations

Last Friday, the Internal Revenue Service (IRS) conducted a public hearing on proposed regulations to eliminate the requirement that 501(c)(4) social welfare nonprofits confidentially disclose the identities of their significant donors. Representatives of a few organizations expressed support for the proposed change in longstanding law, saying the IRS doesn’t need the Form 990 Schedule B for law enforcement purposes and expressing fear the information could be accidentally leaked to the public. However, the proposed regulations drew strong criticism from a few witnesses who said that failure to disclose the names of donors to groups that can engage in partisan, election-related activities would invite foreign nations to illegally and surreptitiously interfere in American elections. Previously, the National Association of State Charity Officials, the National Council of Nonprofits, and many other groups submitted public comments in opposition to the proposed changes. The Internal Revenue Code requires 501(c)(3) nonprofits to disclose significant donors to the IRS, so the IRS can’t change this requirement through the regulatory process.

January 31 Update 

IRS Requiring Tax Exemptions to be Filed Electronically

Beginning today, the Internal Revenue Service is requiring nonprofits seeking tax exemption as 501(c)(3) organizations to file their Form 1023 application for exemption electronically. The IRS is allowing a 90-day grace period when nonprofits can still submit paper forms. Small nonprofits that use the short-form (and controversial) Form 1023-EZ already have to file electronically. To help nonprofits avoid common errors in applying for tax-exempt status, the IRS has also developed an interactive version of the Form 1023.

IRS Provides Guidance to Help Nonprofits Get Refunds of Parking Tax

On Wednesday, the IRS issued guidance that will help nonprofits quickly get back taxes paid on the recently repealed tax on nonprofit parking and transportation expenses. Nonprofits that paid this tax in 2017 or 2018 can get a refund by filing an amended Form 990-T with the IRS and writing “Amended Return” (or “Amended Return – Section 512(a)(7) Repeal” if the amended return is only being filed to claim a refund of unrelated business income tax (UBIT) paid for parking and transportation expenses). Nonprofits may file for refunds within three years of the filing date of their Form 990-T or within two years of the time they paid the tax, whichever is later. 

OMB Proposes New Rules to Improve Uniform Guidance Indirect Cost Guarantee

On Wednesday, the U.S. Office of Management and Budget (OMB) proposed revisions to the Uniform Guidance, the rules governing federal grants to nonprofits. Most notably, the proposed revisions to the OMB Uniform Guidance would strengthen the guarantee that grantees receive reimbursement of indirect costs of at least 10 percent of their modified total direct costs (de minimis rate).

The proposed rules also clarify that all granting agencies paying nonprofits with federal funds – whether federal, state, or local governments, native tribes, or other nonprofits – must pay nonprofits using the nonprofit's existing negotiated indirect cost rates and, if no negotiated rate exists yet, then they have the obligation to negotiate rates, at the option of the nonprofit. To date, various granting agencies have misinterpreted the rules in ways that deny nonprofits' rights under the Uniform Guidance. 

 In other changes, the proposed rules would:

  1. Provide greater flexibility under procurement standards;
  2. Implement standard data elements across agencies and grants;
  3. Promote the collection of data in machine-readable formats;
  4. Allow federal agencies greater flexibility in terminating grants to nonprofits if the agencies’ policy goals change; and 
  5. Strengthen end-of-grant closeout procedures and enforcement.  

The National Council of Nonprofits has prepared an excellent analysis of the proposed regulations and what they mean for nonprofits with federal grants.

OMB is accepting public comments on the proposed regulations through March 22, 2020.

Recent Change in Retirement Laws Does Not Affect IRA Charitable Rollover

As part of Congress’s year-end spending and tax legislation, several federal retirement laws are changing this year. One of the changes raises the age when individuals must start making minimum distributions from their individual retirement accounts (IRAs) from 70 ½ to 72 years of age. Nothing in this law made changes to the IRA charitable rollover – a popular federal tax incentive for charitable giving. Individuals aged 70½ and older may still make tax-free distributions to nonprofits from their IRAs, even if they are not yet required to make distributions from their IRAs because they have not yet turned 72.

 
January 15 Update
 
IRS Increases Standard Business Mileage Rates for 2020

The IRS has announced that the standard business mileage rate will decrease to 57.5 cents per mile in 2020 (down from 58 cents per mile in 2019). Many nonprofits use this rate when reimbursing their employees for work-related driving. The volunteer mileage rate – the amount that's tax-deductible when your nonprofit's volunteers drive on behalf of your organization – remains at 14 cents per mile and can only be changed by Congress. The Nonprofit Relief Act (H.R. 3323), which was introduced last year, would raise the volunteer mileage rate to be consistent with the standard business mileage rat

Report Documents Failures of Flawed Form 1023-EZ

In its annual report to Congress that was filed this week, the National Taxpayer Advocate noted that the IRS’s flawed Form 1023-EZ (short form application for tax-exempt status under Section 501(c)(3) of the Internal Revenue Code) remains a major compliance issue. The report cites a 2019 study showing that the IRS erroneously granted tax-exempt status to nearly half (46%) of the organizations using Form 1023-EZ. Notably, the rate of erroneously granted tax exemption determinations increased after the IRS revised the form in 2018 to require applicants to provide a description of their mission or most significant activities. Some organizations were granted 501(c)(3) status despite being organized and operated for overly broad and vague purposes such as “helping people in need” and “community outreach.” The Center has expressed concerns that the IRS's continued use of the overly-simple Form 1023-EZ could harm the public's trust in nonprofits by allowing some organizations to be granted tax-exempt status as 501(c)(3) public charities even though they do not satisfy the basic legal criteria to merit this tax exemption. 

Taxpayer Advocate Report Highlights Recent Court Challenges to Charitable Contributions

The National Taxpayer Advocate report to Congress also included an analysis of 17 cases decided between June 1, 2018 and May 31, 2019 challenging the deductibility of charitable contributions. The three main reasons the IRS (mostly successfully) challenged taxpayers’ charitable donations were: 

  1. Failure of taxpayers to adequately substantiate their contributions;
  2. Improper valuation of donations of property; and
  3. Misapplication of the laws on contributions of conservation easements.

Nonprofits receiving large contributions of property or conservation easements may want to work closely with their donors to ensure that they are complying with federal tax law when making these donations.

New Federal Budget and Tax Laws Include Many Provisions Affecting Nonprofits

On December 20, 2019, President Donald Trump signed into law two massive federal appropriations bills that provide $1.4 trillion in funding for the federal government for the remainder of the current fiscal year (through September 30, 2020) and make several tax law changes. The Center has published summaries of the tax policy changes and of the spending provisions affecting nonprofits. 


December 19 Update

E-Filing

The IRS has clarified the new online filing requirements for tax-exempt organizations (IR-2019-206). The new e-filing requirements, enacted as part of the Taxpayer First Act, will be in effect for most nonprofits in tax years after July 1, 2019. As a result, electronic filing of the Form 990 will be required for the December 15, 2020 due date. Form 990-EZ filers were granted a one-year extension for paper submissions, leaving online filing as a voluntary option in those cases. In 2020, the IRS will continue to accept paper forms that have not yet been converted to electronic format, such as the Form 990-T used for reporting unrelated business taxable income.

Protect Your Website’s .ORG Registry from Price Hikes

Prices for nonprofit website addresses ending in .org may soon increase dramatically, and censorship may become a distinct possibility because of two seemingly connected events. Earlier this year, the Internet Corporation for Assigned Names and Numbers (ICANN) – the governing body overseeing the .org domain – removed price caps on domain names. The removal leaves nonprofits vulnerable to abrupt, unanticipated, and significant cost increases at a moment’s notice. Then, last month, the nonprofit Internet Society announced it had sold its ownership of the .org Public Interest Registry to a private equity firm, Ethos Capital

The proposed sale would put the rights to more than 10 million domains in the hands of venture capitalists, who – without the longstanding cost controls in place to protect nonprofits – could take more than $750 million dollars from nonprofit missions. The conversion of the .org registry to for-profit control raises the specter of corporate interests shutting down websites that do what nonprofits do: speak truth to power.

A new letter sent to the Internet Society in opposition to the sale, which the Center and more than 11,000 others have already signed, also states, “Decisions affecting .org must be made with the consultation of the [nonprofit] community, overseen by a trusted leader. If the Internet Society can no longer be that leader, it should work with the [nonprofit] community and [ICANN] to find an appropriate replacement.”

Your nonprofit can help protect its .org domain name as well as the entire nonprofit community by signing on to the letter in opposition to the sale found at SaveDotOrg.org. The National Council of Nonprofits has resources on additional actions nonprofits can take to protect .org domain names.

NC Congressman Introduces Universal Charitable Giving Act

On Giving Tuesday, Congressman Mark Walker (R-NC) re-introduced the Universal Charitable Giving Act (H.R. 5923). The bill would increase giving among low and middle class Americans by creating a new, above-the-line, non-itemizer charitable deduction. The Center strongly supports this bill, which has bipartisan support.

The Universal Charitable Giving Act is particularly important in light of recent trends in charitable giving. Because of the structural federal tax changes in the 2017 Tax Cuts and Jobs Act, more than 21 million Americans stopped using the charitable deduction last year. Preliminary data suggests that this tax law change has led to a small reduction in individual donations supporting the work of charitable nonprofits.