Article · Nonprofit

The Tax Falls on the Person, Not the Charity: How Self-Dealing and Excess Benefit Rules Actually Work

26 U.S.C. § 4941

Type
Article
Jurisdiction
National
Date
2024-12-26
Topic
Nonprofit

When a charity engages in a transaction that unduly benefits an insider, the tax that follows is not paid by the charity. It is paid by the insider personally, and by the board members who approved it, and it is imposed on the transaction rather than on any harm. That design decision — penalizing the person rather than the organization — is the organizing feature of exempt organization enforcement, and it explains a body of rules that otherwise appears arbitrary. This article explains the self-dealing regime that governs private foundations, the intermediate sanctions regime that governs public charities, why the two differ so sharply, and what the minimum distribution, business holdings, investment, and expenditure rules require. It closes with donor-advised funds and the practical governance that keeps a well-meaning board out of trouble.

The Tax Falls on the Person, Not the Charity: How Self-Dealing and Excess Benefit Rules Actually Work

Nonprofit > Private Foundations, Donor-Advised Funds, and Excess Benefit | Published 26 December 2024 - Updated 17 May 2025 | UpLaw - uplaw.us

The design choice

Suppose a charitable organization pays its founder's company an above-market rent for office space. The obvious sanction would be to revoke the organization's exemption. That sanction exists, and it is almost never used, for a reason that is easy to state: revocation punishes the charity's beneficiaries for the misconduct of its insiders.

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