Section 4967 - Taxes on prohibited benefits

1 Analyses of this statute by attorneys

  1. Treasury Releases First Installment of Long-Awaited Guidance on Donor-Advised Funds

    Perkins CoieDavid LawsonDecember 6, 2023

    controlled by public charities over which individual or corporate donors may exercise advisory privileges. In November, Treasury finally released the first of four pieces of guidance that it has told practitioners to expect. While this first release leaves some long-anticipated decisions for the future, it does offer helpful clarification, both for donors who may use DAFs as a philanthropic tool and for public charities that sponsor DAFs.The first release consists of proposed regulations under Internal Revenue Code Section 4966, which plays two roles. First, it defines DAFs and DAF-sponsoring organizations. Second, it imposes a punitive excise tax on DAF-sponsoring organizations (and sometimes their individual managers) that make distributions from DAFs to impermissible recipients. The proposed regulations address both aspects of Section 4966, and the key provisions are summarized below.Three more anticipated releases from Treasury are expected to include the following guidance:Under IRC Section 4967, imposing excise tax on distributions from DAFs that confer benefit on DAF donors or donor-advisors, their families, or their businesses.Under IRC Section 4958, imposing excise tax on so-called “excess benefit transactions” by public charities, specifically regarding excess benefit transactions involving DAFs.Concerning how contributions from DAFs to charities should be treated for purposes of the public support test for public charity status, set out in IRC Section 170(b)(1)(A)(vi).Treasury has indicated that all of these releases should be arriving in the near future, but it has not provided a specific date for any of them.Separately, DAFs continue to be a topic of interest in Congress. Members in both houses and of both parties have brought forward various proposals to reform DAFs, primarily in response to a policy concern that funds in DAFs do not reach operating charities in a timely way. The congressional proposals reach further than any guidance expected from Treasury, and some