Foundation Center of Atlanta - Planned Giving Course

PLANNED GIVING

Are You Leaving Dollars Behind?

What is Charitable Gift Planning?

Charitable Gift Planning is the process of cultivating, designing, facilitating, and stewarding gifts to charitable organizations.

Charitable Gift Planning:

• Uses a variety of financial tools and techniques for giving• Requires the assistance of one or more qualified specialists• Utilizes tax incentives that encourage charitable giving, when appropriate• Covers the full spectrum of generosity by individuals and institututions, and is based on powerful traditions of giving in the United States

What are Planned Gifts?

Planned Gifts are a variety of charitable giving methods that allow you to express your personal values by integrating your charitable, family, and financial goals.Making a planned charitable gift usually requires the assistance of the charity’s development professional and/or a knowledgeable advisor such as an attorney,Financial planner, or CPA to help structure the gift.

Planned Gifts can be made with cash, but many are made by donating assetsSuch as securities, real estate, art, or business interests – the possibilities are endless. Planned Gifts can provide valuable tax benefits and /or lifetime income for the donor, donor and spouse, or other family members. The most frequently-madeplanned gifts are bequests to charities, made via wills or trusts.

Why Make a Planned Gift?

Many people want to make charitable gifts but need to do so in a way that helps meettheir other personal, family, or financial needs. Planned Gifts give donors the option formaking charitable gifts in a ways that may allow one to:

• Make a larger gift than thought possible• Increase current income• Plan for the future needs of a spouse or loved one• Provide inheritances for heirs at a reduced tax cost• Reduce income tax and/or avoid capital gains tax• Diversify investment portfolio• Receive income from personal residence or farm• Plan for the transfer of a business• Leave a charitable legacy for future generations

Types of Planned Gifts • Bequests – make up over 80% of all Planned Gifts• Life Insurance• Retirement Accounts (IRA, 401k, 403b, etc.)• Life Estate• Charitable Remainder Trust (CRT)• Charitable Lead Trust (CLT)• Charitable Gift Annuity (CGA)• Immediate Legacy TM

• Donor Advised Fund (DAF)• Pooled Income Fund (PIF)• Community Foundation

More Complex Planned Giving Strategies• Bargain Sales• Private Foundations• Operating Foundations• Supporting Organizations

Bequests and Estate Tax

• Deductible for estate tax if – Made to eligible charity– The amount can be ascertained with reasonable

certainty– Passes in appropriate legal form rather than

executor’s discretion– Cannot be defeated by a contingency, event, or

person

Qualified Disclaimer

• Estate will qualify for estate tax deduction if a qualified charity gets the bequest as a result of a qualified disclaimer.– “All my estate to St. Barnabas Church, except for a

bequest of $250,000 to my daughter.”– If daughter properly disclaims the money; it

passes to the charity; and is deductible from the estate.

Now/Later?

• Give now or at death?• Income tax deduction is available for life time

gifts – that is one advantage• Charities prefer “now” money• Donor may enjoy giving while alive• Advisors can compute whether a major life

time gift is possible

Life Estate • Can give a personal residence, vacation home, farm or ranch,

while retaining the right to live there.• Transfer made by deed, not trust• Charity will get property without restrictions• Deduction is for remainder interest

Life Estate Calculation• Factors in valuing the remainder interest: - Age of donor(s) or term of the agreement - Value of the building, useful life, and salvage value - Value of the land - IRS 7520 rate(used as discount rate; 2.4% as of 1/1/11) - Refer to www.pgdc.com for gift calculators

Gifts of Real Estate

• Real estate is 50% of individual wealth, but only 2% of gifts

• A largely untapped market for planned gifts

To Prepare to Accept Real Estate

• Include in Gift Acceptance Policies• Have a Gift Acceptance Committee• Establish minimum gift size• Consider transaction costs & carrying costs• Consider need for appraisal• Consider EPA inspection• Consider need for a real estate attorney to review title• Consider holding period – when will it sell?• Who will pay any debt associated with property?

Retirement Accounts

• Gain inside an IRA, 401(k), or deferred annuity is taxable at death as “income with respect to a decedent.”

• IRD is taxed first under the estate tax rules. Then it is taxed again under the income tax rules. The income taxable amount is reduced by the estate tax attributable to the IRD.

Practical Points

• Clients generally have a variety of assets.• Capital gain assets (in years other than 2010),

get a stepped up basis at death.• IRD(Income in Respect of Decedent) assets can

be subjected to double tax: estate tax and income tax.

• It just makes good sense to send the IRD assets to charity, for those making gifts, and the capital gain assets to heirs.

Lifetime Gifts of Deferred Annuities

• For annuities issued before April 22, 87, a potential tax trap exists. Based on a private letter ruling, if the charity surrenders the contract in a year later than the donor’s gift

• Red Flag / Avoid these– Donor gets deduction for basis in year of gift– Donor is taxed on full gain in the year the charity

surrenders the contract

Uses of Life Insurance

• Gift of existing policy: – Income tax deduction for fair market value or basis, if less. – Deduct premiums up to 50% of AGI if check is made out to

charity which then pays premium– Deduct up to 30% of AGI if charity owned policy premium

is paid by donor direct to insurance company – Policies with FMV in excess of $5,000 require qualified appraisal

• Encumbered Life Insurance – if policy has an outstanding loan – Red Flag/Avoid

Uses of Life Insurance

• Insurance owned by a trust (ILIT) outside of the estate can buy assets from the estate that are not appropriate for charity to own (like a farm or business) Then the cash proceeds can go to charity, while the heirs get the farm or business, etc.• Insurance can replace assets that are gifted to charity • Can be paired with a Charitable Remainder Trust (CRT) Example: Parents give $1million in assets to CRT. Tax deduction and cash flow from the CRT are used to buy insurance to replace, in whole or in part, the $1 million in assets.

Insurance and IRA• Make charity the beneficiary of the IRA• Meanwhile, use income from the IRA to fund life insurance

payable to heirs• Result can be better than having the IRA go to heirs, while

some other asset goes to charity

Zero Estate Tax Planning• Wealthy clients will most always say that they have a good

estate plan. When asked if they will still be paying some level of estate taxes, many will say they are

• To get to Zero Tax, charitable tools may be needed• As part of such a plan, life insurance often finds a natural role

Insurance Philosophy

• Charities are well advised to work with insurance professionals who place insurance either as a straightforward gift or within a good estate or financial plan

• Aggressive, complex insurance concepts, often involving third party owners, or debt financing, lead to mistrust among charities of insurance people

• Knowledgeable advisors can lead in good planning, for clients and charity, while avoiding questionable concepts

CRTs, CGAs, and PIFS• Each requires donor to make an irrevocable transfer

to a charitable entity• Each generates an income stream to the donor or an

individual or individuals named by the donor.• Each is part charitable and part non-charitable• Each generates an income tax charitable deduction

for the charitable portion of the gift• We will consider each tool in turn

Charitable Remainder Trust

• An irrevocable arrangement in which a donor transfers assets in trust in exchange for an income interest.

Parties to a CRT

• Donor(s)• Trustee

– Administration– Investment management– Tax reporting

• Income Beneficiary (donor or other)• Remainder Beneficiary (charity)• Heirs

Charitable Remainder Trusts

Donor CRT

• Donor gifts cash or assets• Deduction is for remainder interest• Income back to donor• Remainder to charity at end of the trust term

Charity

Benefits of CRT

• Partial deduction• Income generally for life, or term of years up to 20• Sell asset without paying capital gain• Diversify holdings

Types of CRT

• Charitable Remainder Annuity Trust (CRAT)• Charitable Remainder Unitrust (CRUT)• Net Income Charitable Remainder Unitrust

(NICRUT)• Net Income With Makeup Charitable Remainder

Unitrust (NIMCRUT)• Flip Unitrust

CRAT

• Pays fixed income to income beneficiaries• Fixed % of initial contribution• No adjustments to payout based on trust balance• No additional contributions to the trust

CRAT

• Must pass 5% probability test (a less than 5% chance that the trust will exhaust before the end of its term, based on factors in place when trust is established)

• Must pass 10% remainder test (must show at least a 10% remainder based on current assumptions when trust is established)

• CRAT may in reality exhaust itself, terminating income payout and leaving nothing for charity

CRUT

• Pays a fixed percentage of whatever the trust has grown to or shrunk to

• Income to donor varies• Additional contributions are allowed• Must pass 10% remainder test• 5% test always met

– the trust pays a percentage of the remaining balance, and so the trust may dwindle but not exhaust.

NICRUT

• Pays the lesser of payout % or distributable net income (DNI)

• Not allowed to distribute principal• DNI includes rent, dividends, interest, royalties• Trust document may include capital gains realized

post-funding in DNI definition, if state law allows• Prefunding capital gains may not be included in

DNI, even if realized post-funding

NIMCRUT

• A special NICRUT that builds up an account of undistributed DNI from previous years

• May make up payout % for current year by drawing on undistributed DNI account

• Trust document may include capital gains realized post-funding in DNI definition, if state law allows

“Spigot” NIMCRUT

• Defer income to retirement, say, or college funding• CRT asset strategies control the flow of income• Among the income control methods:

- variable annuities- zero-coupon bonds- zero dividend stock

FLIP CRUT

• NICRUT or NIMCRUT that becomes Standard CRUT on occurrence of predetermined event

• No income paid out when no income available• Good for gift of, say, land, which initially produces no income.

• Converts to a Standard CRUT when assets are converted to produce both income and growth, which may then be used to make the payout.

Permissible Trust Terms

• Life, or lives• Term of years not to exceed 20• Combination of the above

Issues in Choosing Format

• Income needs of income beneficiaries• Risk tolerance of income beneficiaries• Nature of the funding assets

­ E.g., use of real estate or other non income-producing property may dictate choice of a NICRUT or NIMCRUT or Flip Unitrust

Among Assets to Avoid

• Partnership interests– Income passes through to trust creating unrelated

business taxable income which is taxed at 100%

• Personal residence– Cannot live in residence without committing self dealing

Excellent Assets

• Appreciated publicly traded securities• Unencumbered real estate

Estate Tax Issues

• Assets in CRT are includible in the donor’s estate• Charitable deduction generally will remove CRT assets from the taxable estate

• Income to spouse may be excluded from decedent donor’s estate

• Income to anyone other than spouse causes inclusion of all CRT income in the decedent donor’s estate

Use in Sale of Business

• Transfer stock to CRT then sell the stock• Avoids capital gains taxes at time of sale• Get deduction for remainder interest • Converts non-liquid equity in business into income-

producing CRT assets • Investments in CRT enjoy tax-free growth• An advanced technique requiring expert legal

counsel

Gift Annuity

Donor Gift Annuity

• Donor gifts cash or assets• Often used for gifts of $50,000 or even less• The charity itself is the payer; no trust involved• Deduction is for remainder interest• Income back to donor is taxed with basis, capital gain, and income pro rata

Charity

Benefits of Gift Annuity

• Income for life• Partial income tax deduction• Can defer capital gain• No legal work required• Can be done for small amounts

Essential Elements

• One or two lives• Not a term of years• The annuity payments are fixed and are not based on the charity’s own return

• Gift portion must represent at least 10% of the gift’s value on date of contribution

Payout

• Based on income beneficiary’s age at time of gift• Charity is free to set its own rates• Uniform (suggested) rates set by American Council on Gift Annuities (since 1927)

• ACGA rates designed to retain half of gift for charity at life expectancy

Immediate Gift Annuity

• Payments start immediately• Payments guaranteed for life of donor or donors• Provides income tax deduction for the donor based

on value of gift minus present value of payments• Capital gain is spread over life of donor

Deferred Gift Annuity

• Payments start in a later year determined by donor• Tax deduction is taken at time of gift, based on age, payment, and start date of annuity

Stepped Gift Annuity

• Payment stream increases over life of annuitant• Schedule set forth in annuity agreement• Also may be accomplished with a series of gift annuities

Charity’s Management Issues

• Secured by the full faith and credit of the issuing charity

• Return is guaranteed by the charity• Annuity payment is not conditioned upon a return

received by charity• May be reinsured by charity’s purchase of a

commercial annuity, subject to state law

Income Beneficiary

• Any individual named by donor at time of gift• Up to two individuals may be named• If other than donor or spouse, a taxable gift occurs• Tend to issued at older ages, 65 and up

Prospects

• Typical gift annuity donor is single, age 77• Median CGA is $57,000• Competes with a CD for those with charitable intent

Advantages to Donor

• Easy to understand• Provides donor with guaranteed income stream• Transaction is part gift• Income tax charitable deduction in year of gift• Beneficial capital gains treatment for donor• Simple documents, little or no legal expense

Cautions

• Charity dies before donor? Donor is left as a general creditor

• State laws govern; some require registration• Not all charities offer these• Look for a strong stable organization• Some charities have large blocks of CGAs and may

not have sufficient assets backing them, on an actuarial basis

Pooled Income Fund

Donor PIF

• Donor gifts cash or assets into commingled fund with assets from other donors• Gets pro rata share of income back• Gets deduction for the remainder interest • Income retains its character, i.e, if dividends paid out, then taxed as dividends; if interest paid out, taxed as interest, etc.

Charity

Pooled Income Funds

• Fund is created and operated by a charity• Transfer to the fund is irrevocable• Donor income based on value of contributed assets compared to total fund value at time of gift

• Fund distributes income to beneficiaries for life• At death of income beneficiary, fund liquidates interest of that beneficiary and distributes underlying assets to the charity

PIF Income Tax Issues

• Provides a partial income tax charitable deduction• Deduction based on remainder interest computed using fund’s highest income in past 3 years

• Avoids tax on long-term gain contributions• PIF pays tax on income, less amounts paid to beneficiaries, less long-term capital gains

• Short-term gain taxed unless distributed

Contribution Assets

• Many charities restrict contributions to cash, marketable stocks and marketable bonds to simplify investment issues and avoid problems

Disadvantages

• Fund operation is hard to understand• Fund startup and maintenance expenses• Once started, charities may feel stuck with it• Income today tends to be quite low

Charitable Lead Trusts

Donors CLT Remainder

Charities

Asset

Income

Asset

For non-grantor, CLT remainder goes to heirs; withgrantor trust maygo back to donor

Charitable Lead Trusts• “Split-interest” gift with a “lead (income)

interest” and a remainder interest• “Lead interest” goes to one or more

qualified charitable organization(s)• Remainder interest goes to non-charitable

entity• Income not tax exempt

Simple Points to Remember

• 90+% of CLTs are for estate tax reduction, not income tax reduction.

• Used by very wealthy families to reduce or zero out an estate for transfer tax purposes.

• Can be set up during life or at death• Compete with Foundations in some respects

as grant-making entities.

Simple Points to Remember

• Low Federal rate, the 7520 rate, is ideal for CLTs (2.4% as of 1/1/11)

• Depressed asset prices going into CLT are ideal, if asset is expected to rebound

• So, today is historically the best time ever for the most common CLT – called “Non-grantor CLT

CLT Formats and Terminology

• CLUT– Income to charity varies

• CLAT– Income to charity fixed

• Testamentary– Set up to start at death

• Inter Vivos– Set up during lifetime

• Non-Grantor– Estate tax tool

• Grantor– Income tax tool

Benefits of Non-grantor CLT

• Zero out an asset• Or greatly reduce its

value for transfer tax• Can zero out an entire

estate

• Help charity with stream of income during trust term

Permissible Payout Term

• For either a fixed term or “lives in being”– limited to one or more of the donor, the donor’s spouse,

or a lineal ancestor or spouse of a lineal ancestor of all of the remainder beneficiaries

• Remainder to any non-charitable entity– may include Donor or Donor’s “heirs”

Charitable Lead Annuity Trust

• Irrevocable gift to Trust, paying a fixed amount to Charity annually– may be stated as a fixed dollar amount or– may be stated as percentage of initial value– payout does not change as assets in trust go up and

down– no upper or lower limit on percentage/annuity amount

Charitable Lead Unitrust

• Irrevocable gift to Trust, paying a fixed percentage of assets to charity based on the value of those assets, as revalued annually – no upper or lower limit on percentage/annuity amount

CLT: Generation Skipping Transfer Tax

• Comes up when the donor wants to make the trust go at termination to a beneficiary more than one generation down (e.g., grandchildren)

• Subjects generation skipping transfers to an additional transfer tax to, in effect, make up for the asset not being taxed in the intervening estate

• Rules differ for CLAT as opposed to CLUT– More favorable for CLUT

Practical

• GSTT rules are complex and beyond the scope of this course.

• Recogize that:• A CLT for, say, grandkids is a red flag • Most likely a CLUT will be preferable, but leave that

conversation to qualified counsel

CLT Donor Profile

• A client who wants to benefit charity• Client whose non-charitable remainder

beneficiaries can afford to wait for property (BUT, think Irrevocable Life Insurance Trust as a temporary solution)

• Client who can forego income from CLT assets for term of trust

CLT Donor Profiles

• Client is making gifts to charity– Use CLT to make current gifts – Move assets dedicated to supporting current

gifts from taxable estate and begin moving principal (and any net growth) to heirs today

Non-Grantor CLT Client Profiles

• Substantial future estate tax problem• Assets which the client-donors

– Do not need for current income production– Do not need to be able to sell or otherwise control

for their own benefit• Most likely married candidates will have

$7,000,000 or more of net worth

Non-Grantor CLT Prospect

• Donor is hitting the AGI limits for annual gifts• Consider gifting to CLT an income producing asset. • Income from asset is 100% deductible to trust, but

limited to a fraction of AGI in donor’s hands.• Net result: Donor need no longer realize income from

the asset that donor cannot deduct as a gift.

CLT versus Foundation

• Client considering a foundation?• Maybe a CLT would do the same job better.• A CLT is donor-created grantmaking entity, but

one that will eventually pour over to the heirs.• Whereas, a foundation never reverts to the

family.

CLT from Charity’s Perspective

• A living lead trust can pump significant dollars to a charity for current programs.

• Life insurance can replace the stream of payments when the trust term ends.

CLT from Heir’s Perspective

• “A deferred inheritance trust.”– CLT at death for 20 years, say.

• Yet, consider it in comparison to a Foundation– With a CLT assets do eventually go to the heirs,

with a Foundation they never will– Again insurance can provide money at death,

while the heir waits

Questions for Prospects

• You have an excellent estate plan, I am sure. Are you still paying any estate tax?

• Have you considered a Foundation? Would you be interested in an alternative in which your heirs can actually get the assets back often free of estate tax?

Questions for Prospects

• I am sure you have an excellent estate plan. Are your advisors aware how idealistic and committed you are to giving? Would it be helpful if I were to meet with them to discuss options that can help you personally, help your heirs, reduce estate tax, and make a big difference for the causes you care about?

Impact

• A CLT is a powerful tool for achieving a positive impact for heirs and for charity.

• What is in it for the donor is knowing that his or her goals are accomplished with great tax efficiency.

• Sell impact and the rest falls into place.

Immediate Legacy™

• A Patent Pending Process That– Generates an Immediate Donation to a Charity at

No Net Cost to a Charitable Supporter– Provides the Charitable Supporter a Current

Income Tax Deduction for the Donation Created

A Non-Disclose Agreement is Required

Charitable Supporter

Charitable LLC

$500,000

$22,500Annually for Term of Loan

Personal Pension

$364,000

$39,500 Annually for Life of Supporter

Insured Death Benefit

$17,000Annually

$500,000 AtSupporter’s Death

Charity $136,000 IMMEDIATE DONATION

Flexibility of Immediate Legacy™

Immediate Donation Now

Immediate Donation Now & Annual Donations

Charitable Supporter

Charitable LLC

$500,000

$22,500Annually for Term of Loan

Personal Pension

$364,000

$39,500 Annually for Life of Supporter

Insured Death Benefit

$17,000Annually

$500,000 AtSupporter’s Death

Charity $136,000 IMMEDIATE DONATION

Annual Gift to Charity

Immediate Legacy™ Guidelines:Supporters Aged 45-85 (Strategy designs have been completed on supporters as young as age 28)

Male or Female

75% Success Rate

15% - 35% of Loan Amount Provides an Immediate Donation to Charity

Donor Advised Funds• Hugely popular• Can be considered like family foundation for those

of more modest means• Some of the largest donor advised fund

complexes are offered by the nonprofit arm of such financial firms as Fidelity, Schwab, and Vanguard (and many others)

• Have traditionally been offered by Community Foundations, Jewish Federation, and other nonprofits

Donor Advised Funds

• Donor makes irrevocable contribution to a non-profit organization that administers the fund

• Receive immediate income tax deduction– Qualify for public charity deductions

• Donor recommends charitable grants based on his/her timetable

• Some charities will allow named beneficiaries may assume advisory role after death, if the charity allows this

Donor Advised Funds

• Can be opened in modest amounts, like $10,000

• As easy to establish as a mutual fund• Some organizations will accept appreciated

property, or even business interests, under certain circumstances

DAF Uses

• “Training wheels” for a future Foundation• Good way to engage children in giving• Can be used in high income years to set

money aside for future gifts

DAF Uses

• A small foundation may prove cumbersome for a family

• They may decide to roll the foundation into a DAF

• Foundations require public disclosure of grants, but with a DAF giving can be anonymous (c.f., gifts to controversial causes)

Community Foundations

• Serve a philanthropic hub for the community, connecting donors and nonprofits

• Have their own endowments• Also hold DAFs and other segregated funds• Are staffed to “reach out” to advisors, as well

as donors and nonprofits

Community Foundations

• Have deep local knowledge of needs and causes

• Can connect donors to others interested in same causes

• Are philanthropic educators and motivators• Nearly 700 CFs in the US

Community Foundations

• CFs may get 40-80% of funds from advisor referrals

• Do advisors, CFs, and DAF providers like Fidelity, Schwab and Vanguard compete for assets under management and client control?– Yes, but also collaborate to raise the field

Types of Private Foundations

• Private Family Foundation• Supporting Organization• Private Operating Foundation• “Conduit” or “Pass-Through” Foundation

Private Family Foundation• A private foundation that makes grants rather

than provide services to the public• Funded by, governed by, and usually named

after a particular individual or a family

Private Foundation

• Gifts to PFs are deductible, – appreciated publicly traded securities at FMV; – Other appreciated property at basis

• Deduction subject to 30% AGI limitation for cash and 20% limitation for long term capital gain property

Private Foundations

• Popular with affluent families– Maximum flexibility and control over assets– Means to instill values in family members

• Restricted deduction limits– But consider a Supporting Organization for higher

deductibility and for various “problem” assets• Stringent reporting requirements

Private Foundations

• Generally make grants to 501(c)(3) organizations

• 5% granted out each year, including administrative costs

Private Foundations

• IRS and State Attorney General or Secretary of State, have jurisdiction

• Policies a foundation should adopt include– Conflict of interest– Investment policy– Travel and expense policy– Record retention policy

Private Foundation Grant-making

• Formal or informal• Best to have some focus so that grant requests

can be limited to that focus• Grant guidelines can be published• Recipients should agree with grantmaker on

“metrics” and reporting• Impact becomes an issue – “Have we

accomplished anything in the world?”

The Private Foundation Rules

• Stemmed abuses• Make very hard to use a foundation to hold small

business assets or to have dealings back and forth between the donor, the donor family, donor controlled entities, and the foundation

• Complex area of the law• Qualified counsel is advised when a situation touches

on these rules

Private Foundations

• Council on Foundations, Association of Small Foundations, and Regional Associations of Grant-makers, among others, can bring families with foundations into a “flotilla” of like minded funders.

Resources to Research• Council on Foundations• Foundation Center of Atlanta• Association of Small Foundation• National Network of Consultants to Grant-makers• Regional Association of Grantmakers• Local Community Foundation (CFGA)• Foundation Source• Attorney in your area specializing in exempt

organizations and estate planning

Which Tool is Right?

• What assets are being used?• How much will go into the tool? • How much control is enough?• How important is privacy?• How important is perpetuity?

Which Tool is Right?

• Planning tolerance• Fee tolerance• Time required

– “This Foundation is more trouble than a pet,” as one donor said.

• Prestige?

Requirements for Income Tax Deduction

1. Must be voluntary2. Made to an eligible charity3. Without consideration or benefit to donor

Note: Above is the general rule. The majority of planned gifts are exceptions to #3.

Completed Gift

• To be deducted a gift must be “complete”– No strings attached– No ability to revoke– Nothing of value coming back to the donor (“quid

pro quo”)– No deduction for gift of a partial interest.

• These are the general rules. For quid pro quo gifts and gifts of a partial interest certain special rules and exceptions apply.

Eligible Charities for Income Tax Deduction

• The Federal Government , a state, the District of Columbia, a political subdivision, but only if used for a public purpose

• An entity organized exclusively for religious, charitable, scientific, educational or other approved civic purposes

• A Veterans organization• A domestic fraternal order, such as Shriners• Certain cemetery companies

Pub. 78

• IRS publication listing eligible charities• Can be accessed at www.irs.gov

Gifts to Individuals

• Gifts directly to individuals are not deductible.• Must go via an eligible charity• The charity must have control

Gift of Partial Interest

• Give it all, without consideration, or no deduction, unless it falls under an exception:– CRTs, CLTs, Pooled Income Funds, Gift Annuities,

Life Estates, Bargain Sales are among the exceptions

– When the donor does get such things as a dinner or sports tickets back, the value received reduces the deduction.

Factors in Computing Deduction

• The type of property donated• The type of charity receiving the gift• The fair market value of the gifted property• The value of any goods or services received in

return for the gift

Limitations

• In addition to the rules as to computing the deduction, another set of rules determine how much of the deduction a client can take in a given year. Those rules turn on the donor’s “contribution base,” which is generally, Adjusted Gross Income.

• Thus, a gift may be “deductible,” yet the donor may not be able to take it, because it hits the donor’s deduction limit for that year.

Type of Property Given

• Generally, gifts are deductible at fair market value, but there are exceptions.

• On the following slides are items deducted at fair market value reduced by unrecognized gain.

Ordinary Income Property

• Inventory, short term capital gain property, life insurance, deferred annuities, works of art or literature created by the taxpayer

• These are among the items that can be deducted only at Fair Market Value minus any unrecognized gain.

Tangible Personal Property

• Furniture, collectibles, jewelry, equipment, works of art, etc.

• These are generally deductible only at FMV minus gain, unless they will be used by the charity for its exempt purpose.

“Applicable Property”

• This is tangible personal property that seems to qualify for a FMV deduction since it will, apparently, be used by the charity for an exempt purpose, but is in fact not so used.

• When the deduction claimed is more than $5,000, and the charity sells the property within the tax year, the property is considered applicable property and deduction is for basis.

“Applicable Property”

• When the property given for use by the charity in its exempt purpose is sold by the charity within 3 years, the difference between the deduction for FMV and for basis is recaptured by the tax payer….

• Unless, the charity has given the taxpayer a good faith certification at the time of the gift that the property will be retained and used for an exempt purpose.

Appreciated Property to Private Foundation

• Gifts of appreciated property to private foundations (other than operating foundations) are deductible at basis unless the property is “qualified appreciated property.”

• Qualified appreciated property is property traded on a public exchange for which quotations are generally available.

Quid Pro Quo Rule

• Gift made and donor gets goods or services in return. Only the amount of the gift in excess of the quid pro quo is deductible.

Quid Pro Quo

• Incidental (insignificant) benefit is ignored• Token items, like coffee mug or t shirt can be ignored,

when the gift is $48 or more.• Token items for 2010 can be ignored if valued at the

lesser of 2% of the gift or $96.• Intangible religious benefit can be ignored• Membership benefits offered in exchange for a gift of

$75 or less can be ignored if the rights to use them can be exercised frequently

Documentation

• For value of the quid pro quo, donor can rely on the charity’s own good faith estimate of the value, unless the donor knows the estimate is false.

Gift of Patents

• Donor gives patent or intellectual property.– Initial deduction is lesser of basis or FMV.– In succeeding years, donor is allowed deduction

for a portion of the income the charity receives from the property.

Limitations Based on Income

• Say the gift is deductible:– Whether the deduction can actually be used, or how much

of it can actually be used, will depend on donor’s Adjusted Gross Income (AGI)

– And it will depend on the type of charity to which the gift is given.

– And it will depend on the type of property given to that type of charity.

Non-Itemizers

• Note that charitable gifts are itemized deductions, but not all donors itemize.

Terminology to Memorize

• 50% charity – a public charity, like a college, United Way, religious organization, hospital, and also a private operating foundation.

• 30% charity – a private foundation, and also veterans orgs, certain cemetery associations, and fraternal orgs.

Percentage Limits to Memorize

• 50% orgs – gifts of cash are deductible up to a limit of 50% of AGI.

• 30% orgs – Gifts of cash are deductible up to 30% of AGI.

The AGI LimitsType of Property Gifted To 50% charity To 30% charity

Cash 50% 30%

Ordinary Income Property 50% based on lesser of basis or FMV

30% based on lesser of basis or FMV

Long term Capital Gain Property

30% 20%

Tangible Property Unrelated to Tax-Exempt Purpose

50% 30%

Note: Unused deduction can be carried forward and used over five more years

Step Down Election

• An election is available whereby donor can reduce the amount of the deduction for long term capital gain property to basis.

• If the election is taken, the deduction limit is 50% of AGI, rather than 30%.

• Election must apply to all to such property gifted in a tax year.

Thought Process with Donors

• “Where will you make the gift?”• “What will you give?”• “What is your Adjusted Gross Income?”• “What others gifts have you made this year?”• “Has your accountant said you have hit your AGI

charitable deduction limits?”• “Per your accountant, do you have charitable

deduction carry forwards from prior years?”

Your Role

• You are not a CPA!• Be should be familiar with the rules, but CPA or tax

attorney should apply rules to given case. • Avoid making simple statements like, “Your

deduction is…; your tax savings is….”• Care should be taken with planned gift software that

shows the dollar value of deductions.

8283 and 8282

• For noncash contributions• These forms, one from donor, and one from

the charity, are used by the IRS as a check and balance.

• They are designed to discourage donors and charities from inflating the deduction.

8283 Part A

• Filed by taxpayer for gifts of noncash property of $500 or more.

• Form asks for FMV, cost basis, how and when acquired, description of property, and how valued.

• If appraisal was used, signed appraisal is attached.• Failure to file results in deduction being disallowed.

8283 Part B

• Noncash gifts over $5,000 generally require Part B of 8283. (Unless the gift is of marketable public securities.)

• Part B requires a qualified appraisal by a qualified appraiser.

• Note: For gifts of closely held stock the threshold is $10,000.

• Note: Qualified appraisals are often costly.

Appraisals

• Qualified appraisers are an important player on the advanced planning team.

• Development pros whose clients have noncash assets, such as closely held business interests, will want to cultivate a network of qualified appraisers.

• Significant penalties apply to substantial or gross valuation misstatements

Gifts of Art

• For gifts of art, valued at $50,000 or more, the tax payer can ask the IRS to provide a statement of value.

• A user fee is charged for this, $2,500 for up to three items.

Deduction for Federal Transfer Tax

• Similar to, but not identical to, income tax• Generally, a death time transfer to an eligible

charity is deductible for estate tax purposes, without an upper limit.

• Gift must be made by the decedent to eligible charities.

Eligible Charities

• Note that income tax deduction is generally not available for gifts to organizations outside the US.

• However, such gifts are permitted for estate tax purposes.

“Made by Decedent”

• To qualify for the estate tax deduction, the gift must be made by the decedent through the appropriate legal documents.

• If the gift is left to the executor’s discretion, or occurs by operation of the state intestacy laws, the deduction is not available.

Your Seat at the Table

ADVISE

PLAN

SELL

CONFERE

Scott and Todd Fithian, The Right Side of the Table

Best Practices of Asking the Philanthropic Question

• Whatever your seat – for big cases lead with an open-ended question

• As opposed to what?– A donor pyramid– A case statement– A pitch– A fact finder– A gift illustration

The Planning Horizon

Why? ________________________ How?

Open Ended Prompts

• If your family had a crest what would be the motto?

• What keeps you awake at night?

• What would you like to change or preserve in the world?

• When you were younger were there things you wanted to accomplish in life you have not yet done?

• How might you get back to that while you have time?

More Probing Questions

• Where do you want to have an impact?

• What nonprofits have meant most to you?

• Where do you volunteer?

• Do you think it is important for kids to volunteer?

• Do you serve on any Boards?

• What gifts have given you the most satisfaction?

• Would you give more if you knew you could afford it?

• What is next for you?

Discernment Process

• Open ended prompt• Encouragement

– Tell me more– Interesting….– And then what?– So, how did that feel?– Are you satisfied with

that?

• Confirmation– What I hear you saying

is….– So, you are trying to….?

• Transition towards solution– Would it help if?

Listen for Story

I was I am I wish I was

I wish to be I will be

• What plan unites the client’s origin, present state, and desired end?

• What makes a happy ending for this life?

• Legacy, posterity, impact

Summary Close for Process

• Let me play back what I think I have heard….• Your situation is….• Your goals are….• Your concerns are…• We have agreed that….it would help if…• Our next steps are….

Discovery/Agreement Memo

• Goals and objectives• Current situation• Issues and

considerations• Options to discuss with

Advisors• Next steps

Best practice is a follow-up memo

Above The Line Planning

• Clients need and want a human touch.

• Finding client goals is key to success

• Do not assume the attorney /CPA has done this

• Huge opportunity to reopen cases with high net worth prospects

Process is key

• Begin with exploration of goals, dreams, aspirations, areas of interest as to impact

• Touch gently on tools• Then go into the process

appropriate to your seat at the table

• Detailed explanation of tools comes later

THE WORLD WE WANT

PETER’S QUESTIONS What is your vision of a better world? What conditions are needed to realize it? What are the obstacles? What parts of the vision are realistic and what ideas,

strategies and plans can make it so?

The Philanthropic Learning Curve via The Philanthropic Initiative

1. Give passively when asked2. Begin to investigate

charities and programs3. Fully engaged, an expert

in an issue area, collaborating with others to move the needle

Many financial services clients are “proto-philanthropists,” who are not yet on the curve at all, or only giving small amounts passively.

How many years or generations before the client reaches stage three?

Can we shorten the curve?

Team

• Estate planner• Financial planner• CPA• JD• Insurance• Investments

Work with others

Or they will work against you

The bigger the case, the more team-intensive

Small Organizations

• You can’t do “planned giving” as the big organizations do, but you can do bequests, IRA and insurance beneficiary designations

• CLT’s are good, as the income stream is transferrable to another charity

• Immediate LegacyTM provides “cash now”• And you can work with advisors to free up large

blocks of cash now, later, and at client’s death.

• Nonprofit has been around 8-10 years or more

• Has donors capable of making such gifts

• Has solid current fundraising programs

• Has staff capable of soliciting, managing, stewarding

• Has a board committed to this• Can afford to raise money for future

uses, as opposed to “now money”

Criteria for ImplementingA Planned Giving Program

A Team Effort

• Planned Gift officers sometimes call advisors, “the dark side” because sometimes advisors kill gift ideas.

• But if a donor is to make a large gift from assets, the advisors will be and should be involved.

• Giving, especially for the affluent, is a team effort.

Sources , References, and Resources

1. “The Right Side of the Table: Where Do You Sit In The Minds of The Affluent? “ by Scott Fithian and Todd Fithian2. “Wealth in Families” by Charles Collier3. “Inspired Philanthropy” by Tracy Gary w/ Nancy Adess4. Phil Cubeta, H. King McGlaughon, Jr. – current and form holders of Sallie and Willam Wallace Chair in Philanthropy – American College5. Chartered Advisor in Philanthropy course material – Richard D. Irvin Graduate School - The American College, Bryn Mawr. PA6. Immediate LegacyTM -GTBK Marketing LLC, Charitable Concepts, LLC.7. The Philanthropic Initiative, Inc., Boston, MA8. PPC’s Guide to Charitable Giving Strategies, Biebl-Ranweiler Portfolio Series9. “The World We Want” by Peter Karoff

Planned Giving Design Center – www.pgdc.com Community Foundation of Greater Atlanta – www.cfgreateratlanta.orgAmerican Council on Gift Annuities - www.acga-web.org Partnership on Philanthropic Planning - www.pppnet.org