One of our editorial board members looks under the hood of private foundations, their uses, and potential governance breaches to watch out for.

Regular Family Wealth Report contributor and editorial board member Matthew Erskine (pictured), managing partner at his law firm Erskine & Erskine, writes about the use of private foundations and practices to avoid. We have covered this topic before, for example, the benefits and costs of using foundations or donor-advised funds in philanthropic circumstances. 

The editors are pleased to share this content; the usual editorial disclaimers apply. Email tom.burroughes@wealthbriefing.com

Private foundations are powerful tools for philanthropy, enabling individuals and families to make a lasting impact on the causes they care about. However, with great power comes great responsibility. 

One of the most crucial rules for private foundations is to avoid self-dealing (1). Self-dealing happens when foundation funds are used for personal benefit which is strictly prohibited by the IRS. In this article, we will explore the rules on self-dealing with private foundations, providing examples to help donors and their families navigate this complex area of philanthropy. We will also discuss how private foundations can steer clear of self-dealing and maintain their tax-exempt status.

Understanding self-dealing
Self-dealing is a clear violation, and avoiding it is fundamental for private foundations. The foundation is a separate legal entity, and its funds should be exclusively used for charitable purposes. This means that foundation assets cannot be utilized to benefit the donor, their family members, or any other disqualified persons. Disqualified persons include foundation managers, substantial contributors, and their family members.

Examples of self-dealing
To gain a better understanding of the rules on self-dealing, let's examine a few examples:

-- Purchasing artwork from a foundation for personal use: A foundation manager who is also an art collector cannot buy a painting from the foundation's collection for personal enjoyment. This would be a clear case of self-dealing, as it benefits the manager at the expense of the foundation's charitable mission.

-- Renting office space from a foundation: If a foundation manager owns a building and rents office space to the foundation at an above-market rate, this would also be considered self-dealing. The manager would be using the foundation's funds for personal gain rather than for charitable purposes.

-- Making a loan to a foundation manager: A foundation cannot loan money to a disqualified person, even if the loan is at a market rate of interest. This is because the loan still benefits the disqualified person and not the foundation's charitable mission.

Indirect self-dealing
In addition to direct self-dealing, the law also prohibits indirect self-dealing. This means that transactions between organizations controlled by a private foundation may also be subject to the self-dealing rules. For example, if a private foundation owns a controlling interest in a for-profit company, any transactions between the foundation and the company would be subject to the self-dealing rules.

How to avoid self-dealing
To prevent self-dealing and maintain their tax-exempt status, private foundations should adhere to these best practices:

Educate foundation managers and board members: Provide comprehensive training on the rules and consequences of self-dealing to ensure that everyone involved understands their responsibilities. This can help prevent unintentional violations and foster a culture of compliance within the foundation.

Maintain independence: Private foundations should have a diverse board of directors or trustees, with no more than a minority of individuals who are disqualified persons. This helps ensure that decisions are made in the best interest of the foundation's charitable mission rather than for personal gain.

Establish a conflict of interest policy: A well-drafted conflict of interest policy can guide foundation managers and board members in making decisions that align with the foundation's best interest. The policy should require individuals with potential conflicts to disclose them and abstain from voting on related matters.

Avoid transactions with disqualified persons: Private foundations should refrain from engaging in any business or financial transactions with disqualified persons, including the sale, exchange, or leasing of property. Instead, the foundation should establish separate arrangements with third parties who are not disqualified persons.

Monitor and document transactions: Private foundations should maintain detailed records of all transactions, including the purpose, terms, and parties involved. This documentation can demonstrate that the foundation is acting in accordance with its charitable mission and not engaging in self-dealing.

Regularly review and update policies: As the foundation's activities and circumstances change, it is important to review and update its conflict of interest policy and other relevant policies. This ensures that the foundation remains compliant with the latest regulations and best practices.

By following these guidelines, private foundations can minimize the risk of self-dealing and focus on their primary mission of making a positive impact on the causes they support. Moreover, the founders and managers of the foundations can avoid the substantial taxes and penalties associated with self-dealing.