Are you planning on filing an application for 501(c)(3) status (Form 1023) with the IRS in the near future? Or have you filed one in the recent past? If so, are you aware that the IRS backlog for processing 501(c)(3) applications has now surpassed one year? Our last post noted that delays in obtaining 501(c)(3) determination letters can create real fundraising headaches for new organizations. This is because many funders are reluctant or unwilling to make grants or donations to organizations that have not yet received a 501(c)(3) determination.
Those of us who work closely with new charities (and the foundations that fund them) share your frustration! We understand that an IRS delay can translate to a delay in funding, which can sometimes mean the death of an organization even before it has had a chance to get started. Therefore, we encourage all our new charity clients to consider developing a contingency plan, which will help them survive the IRS delay.
One solution we often suggest is for the charity to seek the help of a fiscal sponsor. A fiscal sponsor is, essentially, an existing 501(c)(3) organization that will allow the new charity to operate under the fiscal sponsor’s 501(c)(3) umbrella, while the charity awaits its 501(c)(3) determination. Grants and donations can be made directly to the fiscal sponsor (meeting the funder’s requirement of having a recipient with a 501(c)(3) determination). The fiscal sponsor, in turn, will award those funds to the new charity or its project (depending on the model of fiscal sponsorship used). Caveat: it is very important to properly structure the fiscal sponsorship, or it will be disregarded by the IRS for tax purposes, which can result in adverse tax consequences to the fiscal sponsor and/or the funders. There are also important business considerations to keep in mind when structuring a fiscal sponsorship; for example, including an appropriate exit strategy should the relationship not work out.
Two main models of fiscal sponsorship
As indicated, fiscal sponsorship is an arrangement in which an established 501(c)(3) organization—generally a public charity—agrees to provide oversight and assume legal and financial responsibility for the activities of a non-501(c)(3) project (or a project awaiting 501(c)(3) determination). Often, administrative services are offered as well, and an administrative fee is charged. Above all, the sponsored project must engage in work that furthers the fiscal sponsor’s charitable mission.
Most fiscal sponsorships are structured using either the “project model” or the “re-grant model.”
- Under the project model, the fiscal sponsor owns and operates the sponsored project. The fiscal sponsor may hire project staff as employees to carry out the project, or may hire independent contractors (including the sponsored entity itself) to carry out the project. The fiscal sponsor accepts donations for the project and has full legal ownership of funds, and monitors project expenditures. Because the project is essentially operating as a division of the fiscal sponsor, this model implicates more liability issues for the fiscal sponsor, including general liability to the public, employment liability and actions affecting 501(c)(3) status (e.g., lobbying and political activity).
- Under the re-grant model, the sponsored entity owns and operates the sponsored project, and the fiscal sponsor controls the project through its control of grant funding. The sponsored entity will help to raise money from donors that is re-granted by the fiscal sponsor to the sponsored entity for the project, subject to the fiscal sponsor’s ensuring that grant funds are properly expended for charitable purposes. This model raises fewer liability issues, since the sponsored entity is considered the operator of the project, but it is more likely to run afoul of the pass-through issue discussed below.
Potential traps for fiscal sponsorships
While fiscal sponsorship can be a great fit in many situations, it can present complex structural issues. If the relationship lacks certain attributes, or is undertaken with a less-than-ideal partner, there can be serious consequences. Following is a sampling of some potential traps in this area:
- Lack of control: Fundamentally, it is crucial to understand that a fiscal sponsor cannot function as a mere conduit or pass-through for funds to non-501(c)(3)s (which includes, for this purpose, entities awaiting 501(c)(3) determinations). It is not enough to find a 501(c)(3) organization willing to call itself a fiscal sponsor and accept contributions for a non-501(c)(3) (and thus give rise to a charitable contribution deduction that would not otherwise be possible). Rather, the fiscal sponsor must have control and discretion over donated funds. Under the project model, this means that the fiscal sponsor retains the right to decide how to spend funds designated for a project’s mission. Under the re-grant model, a fiscal sponsor needs to retain the right to withhold or demand the return of grant funds if performance requirements are not being met, or to redirect grant funds to another person or entity who can complete the project.
- No written agreement: this increases the likelihood of misunderstanding with respect to the relationship. A written agreement should be used to clarify key issues such as handling of fundraising, description and handling of liability issues, prohibition on activities that threaten 501(c)(3) status, ownership of any assets created by the project, and winding up/termination of the project.
- Misunderstanding of liability issues: it is especially key to understand under the project model that the fiscal sponsor is the owner and operator, and as such could be entirely liable for project debts and obligations. In addition, as discussed above, other liability can arise in the project model situation. And while it is less likely, liability can arise under the re-grant model as well, and can be addressed through indemnification in the grant agreement.
- Lack of due diligence: this applies to both a potential fiscal sponsor and a potential project. A fiscal sponsor needs to conduct due diligence before entering into an arrangement in order to ensure that the project will further its exempt purpose, is viable, and has qualified leadership on board. A potential project, in turn, should examine a potential fiscal sponsor to ensure that it has experience with the legal requirements of the relationship, that its mission is a good fit, that it is a qualified 501(c)(3) organization, and that its finances are in order. Last year, International Humanities Center—a fiscal sponsor with more than 200 charitable projects—closed down and in the process resulted in the loss of an estimated $1 million in donated project funds. This illustrates the importance of putting in some work up-front and selecting the right fiscal sponsor.
Resources for more information
Fiscal sponsorship is a complex topic, and this post has touched on some of the basics. We will post on other aspects of fiscal sponsorship in the near future. In the interim, for those interested in learning more, the following resources are extremely helpful:
- Fiscal Sponsorship: 6 Ways to Do It Right, available for purchase here
- National Network of Fiscal Sponsors (NNFS)
- NNFS Guidelines, for project model and re-grant model.
Additionally, here are some organizations that actively conduct fiscal sponsorship as well as a directory of fiscal sponsors:
- Colorado Nonprofit Development Center: Colorado organization with experience in fiscal sponsorship
- Tides : focuses on fiscal sponsorship in a variety of areas for projects that aren’t separate entities.
- Fractured Atlas: an organization focuses on artistic projects.
- Fiscal Sponsor Directory: an entire directory of fiscal sponsors from across the country.