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Nonprofit Law/501c3 Conversion from PF to PC

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Question
We have an established 501c3 private foundation in the state of Florida.  At it's initial incorporation the president was in the NFL and through himself and various contacts he was making contributions to the foundation which we then converted to grants to fund direct service providers within the community.  Since his retirement we have lost a significant portion of the funding we once had.  Still we have some funding but we struggle to find organizations in the area that provide programing that falls in line with the mission statement we have established. As a result the board of directors met and decided to provide direct contact services within the community.  This raises two questions for me, 1.) Is a private foundation able to provide direct services or must it simply provide funding for direct service providers, 2.) Is it possible to convert a private foundation to a public charity without reapplying for a 501c3?

Thank you

Answer
1.  A private foundation may provide direct services and then it may be classified by the IRS as a private operating foundation. See IRS Publication 557 "Tax Exempt Status for Your Organization"
which is available at http://www.irs.gov/pub/irs-pdf/p557.pdf in the middle column of page 45:
--- Start of Excerpt ---
Some private foundations qualify as private operating foundations. These are types of private foundations that, although lacking general public support, make qualifying distributions directly for the active conduct of their educational, charitable, and religious purposes, as distinct from merely making grants to other organizations for these purposes.
--- End of Excerpt ---

2.  It is possible to convert a private foundation into a public charity without reapplying with the IRS Application for Exemption.  However, as stated in the first column of page 46:
--- Start of excerpt ---
If you are an existing organization seeking reclassification as a private operating foundation or as an  exempt operating foundation, you must file Form 8940, Request for Miscellaneous Determination
--- End of excerpt ---
That form is available at http://www.irs.gov/pub/irs-access/f8940_accessible.pdf with the instructions at http://www.irs.gov/pub/irs-pdf/i8940.pdf

The user fee is shown at http://goo.gl/pV7XLM as "Reclassification of foundation status, including a voluntary request from a public charity for private foundation status...$400"

Harvey Mechanic
Attorney at Law
Harvey108@hotmail.com

P.S. This response is intended to be a general statement of law, should not be relied upon as legal advice and does not create an attorney/client relationship.

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Harvey Mechanic

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I am an attorney and I volunteer time to answer general questions about U.S. Federal income tax issues of nonprofit 501(c)(3) public charities only. Those questions could be about establishing and maintaining legal requirements for such non-profit organizations in the United States, including Internal Revenue service filings and requirements. I will not be working on this free forum to answer questions about Nonprofit's possible unrelated or for-profit businesses or how to fill out forms. This forum is only for general questions about federal tax law, not as the law applies to your specific situation. If you do not make your question public then I will not be spending much of my donated time on answers that would not benefit the public. If you have other questions, please contact me at Harvey108@hotmail.com I will reply from my email. In any case, do not reveal confidential information to me until after I have contracted with you to provide personal legal services. My responses on this forum are intended to be general statements of law, should not be relied upon as legal advice, and do not create an attorney/client relationship. For me to consider your individual situation and how the law applies, I would need to gather extensive information about the situation. To search my previous answers you can do a Google search by "site:allexperts.com/q/nonprofit" without the quotes and then add your search terms before hitting enter.

Experience

I have been practicing law and especially the law of nonprofit organizations since 1990 when I was admitted to the New York Bar and I have maintained my status with the Bar since that time.

Education/Credentials

B.S. Columbia University in New York City, 1970

J.D. (Law Degree) Brooklyn Law School, 1990 -- Cum Laude.


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