In prior columns, I’ve discussed the differences between private foundations and public charities. Both types of charities must operate exclusively for religious, charitable, scientific or similar activities under Section 501(c)(3) of the Internal Revenue Code, and are therefore exempt from federal income taxes. Contributions to either one give the donor a tax deduction, with the amount depending on the tax-filing status of the donor, the type of organization receiving the contribution and the type of property contributed.
Private foundations are a tool the wealthy and powerful use to address social needs in a manner consistent with their philanthropic and personal philosophies. Unlike public charities, private foundations, which are usually funded by a single contributor, family or family business, may be required to pay certain excise taxes.
Some private foundations, called nonoperating foundations, don’t conduct programs of their own; instead, they make grants and distributions. Some nonoperating foundations are now starting to appreciate the virtues of a charitable device called program-related investments, or PRIs. A PRI is an IRS-permitted charitable disbursement that is also a permitted investment. As a result, PRIs provide private foundations the ability to further their mission while preserving their capital.
To be considered a program-related investment by the IRS, an investment must possess these three characteristics:
01. Its primary goal is to accomplish one or more of the foundation’s exempt purposes.
02. The production of income or the appreciation of property is not a significant purpose of the investment.
03. The investment is not intended to further legislative or political goals.
PRIs are not primarily intended to make money, but the foundation does expect repayment of the loan or return of the capital it has invested, often with interest or capital appreciation. Once the foundation’s loan proceeds or capital is restored—perhaps with interest or profit—it has more money to spend on other charitable projects. Thus PRIs have a potential “multiplier” benefit that grant-making does not.
PRIs have other advantages over grants: They do not count toward the asset base upon which a foundation’s mandatory annual disbursement amount is based—but they do count toward the amount that foundations must annually pay out to avoid the excise tax on undistributed income.
Most significantly, even though many of these investments are high-risk, a PRI will not subject the foundation to the excise tax that private foundations must pay for making investments that jeopardize the conduct of the foundation’s exempt purposes. That’s because the IRS wants to encourage foundations to make investments for social good that are too risky or insufficiently lucrative to appeal to for-profit investors and lenders.
An investment is treated as accomplishing one of the foundation’s exempt purposes only if it significantly furthers the foundation’s exempt activities and, importantly, would not have been made but for its relation to those activities. But PRIs don’t have to be made only to other tax-exempt organizations; as long as they further the foundation’s mission, they can go to for-profit entities and to the funding of activities in foreign countries.
The IRS has recently issued proposed regulations that include examples for structuring permissible PRIs; the agency will clearly look at whether a disinterested investor in the market would make the same investment on similar terms. Anyone involved with a nonoperating private foundation should carefully consider PRIs. They’re an important tool for both the foundations that make them and the organizations that receive them.
