The proposed regulations modify the reliance standards for making “good faith determinations” that foreign grantees are the foreign equivalent of a public charity.
Text of the proposed regulations: REG-134974-12 [PDF 84 KB]
A private foundation making a grant to a foreign organization that does not have an IRS determination letter can make a good faith determination that the organization is a “public charity”. Such a determination generally allows the private foundation to treat the grant as a “qualifying distribution” under section 4942 and generally relieves the private foundation from exercising “expenditure responsibility” under section 4945.
Under the current regulations, a private foundation is permitted to base its good faith determination on either an affidavit of the grantee or on an opinion of counsel of either the grantor or grantee.
The proposed regulations expand the class of practitioners on whose written advice a private foundation may base a good faith determination to any “qualified tax practitioner” (i.e., an attorney, certified public accountant, or enrolled agent as defined in Circular 230). The expanded class would not include foreign counsel unless foreign counsel is a qualified tax practitioner.
While these new rules were published as proposed regulations, private foundations may rely on them for grants made on or after September 24, 2012 (i.e., the scheduled date of publication in the Federal Register).
In the preamble to the proposed regulations, the government requests comments regarding the following items:
- The timeframe during which a private foundation can rely upon a qualified tax practitioner’s written advice
- Whether Rev. Proc. 92-94 (relating to qualified affidavits) is to be modified to take into account changes to the public support test
- Whether additional guidelines regarding appropriate timeframes for gathering information with respect to affidavits should be provided
- Whether the ability of a private foundation to base a good faith determination on an affidavit of a foreign grantee is to be eliminated or restricted
For more information, contact:
Rick Speizman, National Partner-In-Charge, KPMG’s Exempt Organizations Tax Practice (ExoTax)
+1 (202) 533-3084