Link to Submitted Comments - click here.

We are pleased to announce that on June 23, 2020, the TEGE Exempt Organizations Council submitted comments to the IRS and Treasury in response to proposed regulations under Section 512(a)(6), commonly known as the UBIT Silo regulations. The comments were 101 pages, with exhibits, and represent a herculean effort on the part of the group below to spot issues, identify potential solutions, propose examples, and collaborate, coordinate, draft, and edit—all within the short window of time to submit comments for official consideration. Thanks to the committee for the generous gift of time, thought, and leadership. Thanks also to Alexander L. Reid (Regulatory Affairs Chair) and Chelsea Rubin for their leadership.

• Dayo Adesuyi
• Farah Ansari
• Ted R. Batso, Jr.
• Lori Boyce
• Amy Ciminello
• Stephen M. Clarke
• Nathan M. Doane
• Mallory Fairless
• Polly Federico
• Sara Elizabeth J. Hyre
• Ed Jennings
• David Lowenthal
• Elizabeth Mills
• Christopher N. Moran
• Sarah-Jane Morin
• Megan M. Okun
• Jennifer Richter
• Emmett H. Robertson
• Mary Torretta

As always, we have added access to the comments on the Council’s website under Announcements/Comments. Per Council policy, the comments include a note that comments do not represent the views of the TEGE Exempt Organizations Council or any particular Council member.

Section 4960 Project. The Comments Committee is seeking volunteers to participate in a comments project related to the Section 4960 Executive Compensation Excise Tax. Please email Alex Reid (alexander.reid@morganlewis.com) if you are interested.

Forms & Instructions Project. The Comments Committee is interested in maintaining engagement with the IRS on the forms and Instructions applicable to tax-exempt organizations, particularly the Form 990 series and Form 4720. Ideally, the Committee would like to collect comments over the course of the filing season on the prior year’s forms and make an annual submission of comments to the IRS. We have added a submission form on the Council website at https://www.eocouncil.org/question-submission.html. Alternatively, you may email Eve Borenstein (eve@taxexemptlaw.org) and Lori Boyce (lboyce@deloitteretired.com).

Registration is now open for the TEGE Exempt Organizations Council’s EO Update on Monday, November 18, 2019, presented in cooperation with D.C. Bar Continuing Legal Education and the Greater Washington Society of CPAs. This two-hour program will occur live in Washington DC and Cincinnati, and also be broadcast by webinar. The agenda and registration form are available at eocouncil.org/events.

The program will include an extensive Q&A session with Margaret Von Lienen, Director, Exempt Organizations, during which the speaker will respond to pre-submitted questions. Stephen A. Martin, Director, Rulings & Agreements, Exemption Organizations, is also invited for this Q&A session. Janine Cook, Associate Chief Counsel (EEE), IRS, and Elinor Ramey, Office of Tax Policy, Dept. of Treasury, will then present on IRS and Treasury Regulatory updates and respond to certain pre-submitted questions.

As always, the Council will provide questions in advance to our government speakers and their teams. Please send areas of inquiry, questions, and/or comments (including comments on IRS forms and instructions) to Eve Borenstein (eve@taxexemptlaw.org) and Lori Boyce (lboyce@deloitte.com) no later than October 7. We have also added a new feature to the Council website whereby submissions may be entered at any time at Question-Submission.

At the Council’s last program in June, our government speakers requested practitioner feedback on a number of items. Following are related items we would like specific input on:

1. The IRS has put forth a multi-year plan with their Integrated Modernization Business Plan. Are there any items that you feel are missing? Anything that you feel is not workable?
2. Form 990-T e-filing is around the corner. Practitioners have commented that there is no commercial software available that handles all of the items facing tax exempt organizations—in particular, tax-exempt trusts. Other than the following, are there additional examples where the commercial 990-T software does not handle the necessary items to allow for e-filing?
   1. Foreign tax credits
   2. Passive Activity Loss Limitations
   3. NAICS code fields being limited to only those in the 990-T instructions
   4. Other examples?
3. Proposed rules regarding IRC section 4968 excise tax for certain colleges and universities with respect to their net investment income.
4. The IRS has tried to fix the processing of FUTA payments by 501(c)(3) organizations that are being remitted for compensation of employees related to ineligible organizations. Is the rejection of the payments still occurring?
5. Please comment on ASU 2016-14-related instructional changes that may be needed. [This accounting standard changed the way in which non-profits report expenses in their financial statements. The Form 990 instructions state that the organization should “Use the organization’s normal accounting method to complete Part IX Statement of Functional Expenses.”]​

The Council has submitted comments to the 2018 Forms 990-T, 990, 990-PF, 4720, and 1065 (K-1).

Please click here to view. Contact Alexander L. Reid with questions

The TEGE Exempt Organizations Council, in partnership with D.C. Car Continuing Legal Education, is excited to announce that all seven sessions from the Council’s June 28, 2019 EO Update are now available for purchase, viewing, and CLE credit (attorneys only) at www.dcbar.org. To view and purchase the courses, click under “CLE”, then “On Demand Courses”, and then proceed to page 11. D.C. Bar CLE on demand courses are accredited for CLE in all jurisdictions that allow for CLE remote learning. The sessions include:

1. “Form 990: Top Issues” – Eve Borenstein (Harmon Curran Spielberg & Eisenberg), Kathy Pitts (EY)
2. “4960: A Practical Discussion on Employee Benefits and Deferred Compensation” – Andrea Gehman (Johns Hopkins University Applied Physics Laboratory), William McNally (IRS Associate Chief Counsel (EEE)), Seth Safra (Proskauer & Rose), Syma Siddiqui (Johns Hopkins University), Chelsea Rubin (Morgan, Lewis & Bockius) (formerly IRS Associate Chief Counsel (EEE))
3. “IRS, Exempt Organizations Update and Discussion” – Margaret Von Lienen (Director, Exempt Organizations, IRS), Stephen A. Martin (Director, Rulings & Agreements, Exempt Organizations, IRS), Lori Boyce (Deloitte Tax)
4. “IRS and Treasury Regulatory Update” – Janine Cook (IRS Associate Chief Counsel (EEE)) and Elinor Ramey (Office of Tax Policy, Dept. of Treasury)
5. “Capitol Hill Update” – Caroline Waldner (Morgan Lewis & Bockius), Gordon Clay (Legislation Counsel, Joint Committee on Taxation), John L. Schoenecker (Senior Investigative Counsel, Senate Finance Committee)
6. “Social Philanthropy and Program Related Investments” – Rabecca Cross (Michael & Susan Dell Foundation), Jonathan Blum (Polsinelli)
7. “EO Examination Issues” – Ray Bunyard (Baylor Scott & White), M. Michelle McCarthy (IRS TEGE Division Counsel), Alicia Janisch (Deloitte Tax)

CPE credit is not available for the on-demand sessions. We will explore this going forward.

Remember to save the date for our upcoming program on November 18, 2019 from 8-10 PDT / 9-11 MDT / 10-12 CDT / 11-1 EDT (note: the time has changed from our last email), which will take place live in DC and/or Cincinnati and be available by webinar for individual dial-in. Registration will open mid-September.

Please also save the date for our Annual Exempt Organizations Meeting on February 20-21, 2020 in DC. Agenda coming soon, with registration anticipated to open in October.

The Council has submitted comments requested by the IRS and Treasury related to Notice 2018-67 regarding how to identify separate unrelated trades or businesses for purposes of Section 512(a)(6) of the Internal Revenue Code. Following is a link to the comments submitted earlier this week: TEGE EO Council 512(a)(6) Comments.

This has been a significant effort on the part of many. Special thanks to Stephen M. Clarke and Mary Rauschenberg for leading the effort and to Alex Reid (Regulatory Affairs Chair) and the Regulatory Affairs Committee (Lori Boyce and Eve Borenstein) for their assistance.

4960 Comments. On December 31, 2018, the IRS issued Notice 2019-09, which provides interim guidance on the new 4960 excise tax applicable to certain compensation paid by tax-exempt organizations enacted as part of the Tax Cuts and Jobs Acts of 2017. Council leadership is seeking interest in participating in or leading an effort to submit comments on the interim guidance, no later than the first week of March 2019. Please email Alex Reid (alexander.reid@morganlewis.com) if you are interested in participating.

As many of you know, effective February 22, 2018, the exempt organizations side of the historic TEGE Councils reorganized into one national TEGE Exempt Organizations Council. The TEGE councils have always focused on conversations—with government and regulators and amongst the practitioner community. The consolidated TEGE Exempt Organizations Council will provide a stronger voice on a national level and better facilitate garnering the attention of and speaking to policymakers at the IRS, Chief Counsel, and Treasury. The Council has already conducted two tax reform comment projects in 2018, with a third currently under way. In addition to continuing existing programming, the consolidated Council will provide expanded opportunities for practitioners to interact and share ideas with other tax-exempt experts across the country.

Purposes. The TEGE Exempt Organizations Council was formed to (i) open and maintain lines of communication between the Tax Exempt & Government Entities Division of the IRS and the practitioner community, (ii) provide the TEGE Division with the thinking of the practitioner community on procedural and systemic matters, (iii) provide practitioners a forum to share their concerns with the IRS regarding both policies and specific tax issues and procedures, and (iv) educate the practitioner community and the exempt organizations community.

Membership. One of the exciting aspects of the consolidated TEGE Exempt Organizations Council is the simplification and expansion of membership. Members will continue to include attorneys, CPAs and accountants, and other practitioners in the exempt organizations industry. Initial members include current members of an existing TEGE regional council, and additional members will be accepted based on the following criteria:

1. Expression of an interest in the purposes of the Council and in membership; and
2. The provision of significant professional services in or to the exempt organization community (including professionals who work within an exempt organization).

Potential members should complete a basic membership application establishing their qualifications, which can be submitted online through our new website at www.eocouncil.org.

Leadership. Council leadership will continue to include representation from each of the five historical IRS exam regions. We are thrilled to announce our initial Board of Directors, Officers, and Chairs at https://www.eocouncil.org/leadership.html. The Council’s Bylaws require comparable representation for attorneys and certified public accountants. No more than one representative from any one firm may hold a director position. No more than two representatives from any one firm may hold officer positions.

Programs. TEGE Exempt Organizations Council programs will continue to be open to the public and publicized to the Council’s broad distribution and membership list. We will continue to leverage technology to broaden program accessibility. We anticipate that our current program calendar will remain consistent for 2019 and 2020.

Please save the date for our upcoming programs on December 11, 2018 (Presentation and Q&A session with Margaret Von Lienen, Director, Exempt Organizations) and our two-day annual meeting in Baltimore on February 21-22, 2019.

TEGE EO Council Members and Alumnae, Past Attendees, Tax Press, and Friends,

At the September 11 TEGE Exempt Organizations Council program, government speakers Margaret Von Lienen, Elinor Ramey, and Janine Cook asked for comments/feedback on a variety of topics. We are seeking volunteers to participate in one or more comment topics below and to actively and timely participate in providing feedback/perspective. The forms/instructions comments in particular are needed quickly in order to be relevant.

• Forms/instructions’ immediate needs related to tax reform – 990 series, 4720N, and K-1s (including Form 990-T when released);
• Unrelated Business Income Tax, including 512(a)(6) silo rules, Notice 2018-67, NOL ordering rules, investment revenue issues, and use of NAICS codes for identifying separate trade or business activities;
• Clarification as to when disclosure of related organization as a “controlled entity” under 512(b)(13) is required on Form 990 Schedule R, Parts II and IV;
• Partnership audit rules as they relate to exempt organizations; and
• Section 4968(c) (excise tax on investment income of private colleges and universities) guidance needed and transitional relief,

Please respond to Danika Mendrygal (danika@mendrygallaw.com) as soon as possible if you are interested in actively contributing to the comment process, or if you have existing written comments to submit.

We are also seeking redacted sample portions of partnership agreements that address the partnership audit rules with respect to exempt organization participation and the allocation of any liability for tax at the partnership or partner level. Please forward these to Danika (danika@mendrygallaw.com) as well.

On August 16, 2018, the EO Council submitted comments regarding the need for guidance with respect to certain provisions in Public Law No. 115-97 (the “Tax Cuts and Jobs Act”) affecting tax-exempt organizations and their donors. Following is a list of the submissions:

• Cover letter
• Comments
• PowerPoint slides, referenced in the Comments