Order Code RS21603
Updated September 5, 2003
CRS Report for Congress
Received through the CRS Web
Minimum Distribution Requirements for
Foundations: Proposal to Disallow
Administrative Costs
Jane G. Gravelle
Senior Specialist in Economic Policy
Government and Finance
Summary
Legislation introduced in the House (H.R. 7) to provide tax incentives for
charitable giving includes provisions disallowing the counting of administrative costs
as part of a minimum distribution requirement for private foundations. The issue of
administrative costs and minimum distributions has been the subject of a series of
changes in the past, but currently there are no restrictions other than that administrative
expenses be reasonable. The principal arguments for adopting the provision are to
discourage excessive administrative costs and increase the level of grants. The principal
objections are that the restriction would increase the tendency of current requirements
to erode real asset values and that the restriction would be especially harmful for those
grant objectives that require a significant amount of monitoring.
The Senate has passed legislation, S. 476, that provides for a series of tax benefits
designed to encourage charitable contributions. The House had passed its own version
of this legislation in the 107th Congress, H.R. 7. The House-passed version included a
provision beneficial to private foundations, which would reduce a small excise tax applied
to investment earnings; this issue was not addressed in the Senate bill.1 The current
version of H.R. 7, introduced by Congressman Blunt, added a provision to the bill to
disallow the counting of administrative costs in determining the minimum distribution
costs of private foundations that make grants. This report explains the current minimum
distribution requirements in the tax law and the history of this provision, and discusses
the issues. A planned markup of the bill by the Ways and Means Committee on
September 4 has been postponed to consider this provision further.
Current Tax Treatment of Private Foundations
1 See CRS Report RS21144, Tax Incentives for Charity: An Overview of Legislative
Proposals, by Jane G. Gravelle for an overview of the provisions in these bills.
Congressional Research Service ˜ The Library of Congress
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A donor who sets up the foundation can benefit from tax deductions for the
contribution, without immediately making the charitable donation. Rather, the foundation
can retain assets and make contributions over time; the founder or his heirs can retain
control over the distribution of funds. Investment earnings are not subject to income
taxes. The tax law imposes some restrictions, therefore, on foundations to ensure that the
charitable purpose is realized and that the benefits do not accrue to private parties. Among
these restrictions is a requirement that 5% of investment assets be distributed each year
in a qualifying distribution. If this distribution is not achieved, there is an excise tax of
15% in the first year, which then becomes 100% if the distribution is not made in the
second year. Thus, because this tax is confiscatory, foundations must effectively
distribute the 5% amount.
The proposed change in H.R. 7 would not allow administrative costs to count against
the minimum distribution requirement for foundations that make grant (technically called
non-operating foundations).
Legislative History
The excise taxes and regulations applicable to foundations reflect a concern that the
tax benefits not be used to provide private benefits and that the charitable purpose be
served by preventing the accumulation of assets in the foundation. Many of these
provisions, including the minimum distribution requirement, were originally adopted in
the Tax Reform Act of 1969. Part of the reason for the minimum distribution rule was
to replace an existing system where foundations could lose their exempt status if they had
excessive accumulations, a cumbersome and difficult system which often involved
expensive litigation. The two tax-writing committees initially reported a 5% minimum,
but that number was raised to 6% on the Senate floor; the figure could be adjusted by the
Treasury based on investment yields. The provision also required a distribution of all net
income if that amount were larger.
This restriction was followed by two reductions of the distribution requirement.
First, the minimum distribution (which had become 6.75% by 1976) was lowered to 5%
and fixed at that level by the Tax Reform Act of 1976. The Economic Recovery Tax Act
of 1981 eliminated the requirement that all net income be paid out if that amount were
larger. The reason given for this 1981 change was that payment of all income would
gradually erode the value of the real assets because of inflation, a problem that had
become much more severe over time.
The Deficit Reduction Act of 1984 temporarily limited administrative expenses that
could be included in the minimum distribution rule to 0.65% of assets and the
requirement that administrative expenses be reasonable and necessary was put into the
statute (it was already in the regulations). This restriction reflected a concern that much
or all of the distribution requirement could be met by administrative expenses, and that
the public purpose of the charitable treatment was to provide the actual charitable
benefits. This limit was to expire at the end of 1990 and a Treasury report mandated by
the legislation recommended in 1990 that the termination occur (and it did).
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Issues
Many of the arguments for excluding administrative costs from the payout
requirement are presented in a study by the National Committee on Responsible
Philanthropy2 The principal arguments in these studies, which also present data on the
administrative expenses of foundations, are that the restriction would encourage
foundations to be frugal in their administrative overhead and would make available an
additional amount of charitable donations from foundations, of up to $3.2 billion in 2003.
The reports also suggests that such a restriction is quite manageable, as foundation
administrative costs average only 8.7% of distributions or 0.4% of assets, and that, based
on historical evidence on earnings, these amounts could be covered without reducing the
size of foundations. The reports also indicate a concern for excessive administrative
costs, particularly in the form of high salaries of officers, citing some examples. The
studies also point out, in response to criticisms that the higher payouts will reduce that
value of foundations assets, that private foundations receive funds from other sources than
earnings on assets, including ongoing donations by families.
Foundations critical of this change have made two basic arguments. First, they
dispute the argument above that foundations will be able to make larger payouts without
eroding the value of assets. Indeed, they argue that even the current 5% payout
requirement inclusive of administrative costs would eventually erode real asset value
(accounting for inflation), given historical nominal returns. They also argue that the
provision would discourage grants to smaller, grass-roots groups that require more
administrative attention and entail higher costs to monitor and support recipients. In
addition to these arguments, they also suggest that news stories reporting abuses by
foundations, in particular in the form of excessive salaries relative to grants, are not
representative.3
Historical data suggest that real earnings could exceed the 5% or 5.5% level if the
portfolio contains significant risky assets (such as corporate stock), but probably not with
relatively riskless assets. During the period 1959-2001, the average return on 6-month
Treasury bills was 1.7%; the return on Baa corporate bonds was 3.5%. Real returns
varied substantially over time, with returns quite low in the 1970s, but relatively high in
the 1980s and 1990s. (Baa bonds earned real returns in excess of 5.5% in every year from
1981 on, however). Corporate stock has typically (over a long period of time) returned
real earnings of 7% or more, but earnings can fluctuate even more over time.
However, even if the average foundation could not consistently earn the required
amount to retain real assets, there is also a public policy question of whether it is
important to preserve the real value of foundation assets in perpetuity absent any
2 “Helping Charities, Sustaining Foundations,” June 2, 2003, and “A Billion Here, A Billion
There: The Empirical Data Add Up,” July 8, 2003. As of this writing, these reports are posted
on the web at http://www.ncrp.org/. The second report was a response to criticisms by the
Council of Foundations, discussed below.
3 A “talking points” fact sheet and rebuttal to the first study of the National Committee on
Responsible Philanthropy, discussed above, was issued by the Council on Foundations in June
2003. As of this writing it can be found at http://www.cof.org/, the Council’s website, along with
other materials addressing these issues.
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additional contributions. From the standpoint of the charitable objective, payout
requirements are really about the timing of charitable bequests, and it might be desirable
to pay out amounts earlier rather than later. Moreover, there has always been a concern
that foundations are ways of avoiding income and estate taxes while preserving the power
that comes with control over assets. On the other hand, increased restrictions on
foundations may also make them less attractive and reduce charitable giving in the long
run.
Possible Revisions
One method of restricting administrative expenses without increasing total
distribution requirements for foundations with modest administrative costs is the separate
restriction on these costs as adopted in 1984. News reports also suggest that one possible
revision might be to disallow only certain types of expenses (e.g., salaries above a certain
level, other items deemed to be “luxury” ones). At the end of July, Senator Hutchinson
introduced a bill, S. 1514 which, among other provisions, would disallow expenses such
as foreign travel and first-class air travel.