A Non-Profit Horror Story for Halloween

Imagine making a contribution of $25,000 to your favorite charity only to have the Internal Revenue Service disallow your tax deduction. This nonprofit horror story may sound absurd, but if you’re not careful, it could happen to you.

It starts with a nonprofit that you’ve been giving to for many years and know very well. It’s a legitimate 501(c)(3) public charity as recognized by the IRS. You know members of the board of directors and have met regularly with the professional staff. It truly is a great organization and unquestionably, your gift will do wonderful things for the charity and the community it serves.

Several years pass and you see the impact of your gift, and you couldn’t be more pleased. But during a routine audit of your taxes by the IRS, your $25,000 deduction is suddenly, and completely, disallowed.

You’re confused and don’t understand what you did wrong. This is a legitimate nonprofit organization. You did not receive anything in exchange for your gift. Everything about this gift and the charity involved was honest and appropriate. It turns out the IRS disallowed your gift because of the omission of a single sentence.

The receipt provided by the organization failed to state that you “did not receive any goods or services” in exchange for your contribution.

That’s it. That’s all it took. The failure of the charity to include a single sentence was sufficient for the IRS to disallow the deduction. Somewhere, really anywhere, on a receipt, thank you letter, or other acknowledgment of your gift, the charity needed to include that sentence. The charity can word it in a variety of different ways, but it needs to put into writing that that “you did not receive any goods or services in exchange for your contribution.”

These are the essential facts of the real life nonprofit horror story of David and Veronda Durden. In 2007, the Durdens made a contribution of nearly $25,000 to their nonprofit church and received an acknowledgment of their gift for tax purposes. This generous couple did not receive anything tangible or substantial in exchange for their gift, but the thank you letter from the charity did not explicitly say so. Thus the IRS disallowed the deduction.

There is some logic to the IRS’ position. Before you are allowed to claim a tax deduction, the government wants to be assured that your charitable gift was actually a gift, and not a payment. For example, the checks you write to a nonprofit preschool for your child’s tuition are not charitable gifts. You’re purchasing a service. The IRS needs to be able to differentiate between your payments to a nonprofit to obtain a good or service and charitable gifts for which you receive nothing substantial in return.

In the case of the Durdens, theirs was a legitimate charitable gift but their church failed to clearly state that no goods or services were provided. Of course, you would have thought that they could have simply corrected this problem by asking the organization to correct their omission. Indeed, that is exactly what the Durdens did in 2009, more than two years after they made their gift. The charity issued a second letter, this time including the key sentence that no goods or services were provided to the donors. Unfortunately, the IRS still disallowed the contribution.

The IRS says that “a donor claiming a deduction of $250 or more is also required to obtain and keep a contemporaneous written acknowledgment for a charitable contribution.” The key word is “contemporaneous.” The IRS says that “to be contemporaneous the written acknowledgment must generally be obtained by the donor no later than the date the donor files the return for the year the contribution is made.” (Both quotes are taken directly from the IRS website).

In practical terms, the IRS was saying that it was too late for the Durdens to obtain a new letter from the charity. The new 2009 acknowledgment letter correctly included the key sentence about “no goods or services” but it was not “contemporaneous” because it was obtained after their taxes were filed.

Needless to say, many thought this was absurd and thus the Durdens took the issue to tax court. After years of court battles, and to the dismay of the Durdens and donors everywhere, in Durden v. Commissioner of Internal Revenue Service the Court sided with the IRS. Clearly, the charity erred in its failure to include the “no goods or services” sentence, but the court affirmed that obligation to obtain the correct documentation before filing their taxes is on the Durdens, not the charity.

And so here we are. A couple makes a remarkably generous gift of $25,000 to a charity. The charity screws up and fails to put into writing that no goods or services were provided in exchange for that gift. As a result, the IRS disallows the tax deduction to which the donors should have been entitled. It’s every donor’s horror story.

So when you make a gift, remember that the IRS says that it’s your responsibility to obtain the necessary documentation to claim a tax deduction. Here’s what the IRS says you need as a donor:

For gifts of less than $250, you must have a bank record or written communication from a charity documenting the gift.
For gifts of $250 or more, you must obtain a contemporaneous written acknowledgment (a thank you letter, receipt, or other acknowledgment letter) from the charity stating what was contributed.
If nothing substantial was provided to you in return for your gift, the acknowledgment must say so in writing, something to the effect of “no goods or services were provided in exchange for your contribution.”
If you received something substantial in return for your gift, such as when you purchase tickets for a golf fundraising event, the acknowledgment letter should value those services and state something like “you received lunch and a round of golf valued at $75 in exchange for your contribution of $250.”

For more information, visit the IRS website and to download IRS Publication 1771, Charitable Contributions – Substantiation and Disclosure Requirements. Don’t let a nonprofit horror story happen to you.

This column by Bret Bicoy originally appeared in the Peninsula Pulse on November 6, 2015.

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