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Letter To Clients Re: Charitable Gifts

January 17, 2017

 


Dear Client:

 

Now is a good time to review substantiating charitable gifts on your 2016 federal income tax returns—due by April 18, 2017.

 

The federal government encourages your generosity by allowing you to deduct your gifts to charities on your income tax return if you itemize. However, you must follow the IRS’s reporting and substantiation rules to assure your charitable deduction.

 

I hope that this letter highlighting the requirements of the IRS will be helpful to you when preparing your federal income tax return for the year 2016 (due by April 18, 2017).

 

This letter will outline the General Rules regarding Donations to Charities: 

 

(1) Reporting Requirements for Non-Cash Charitable Contributions,

 

(2) Rules for Hard-to-Value Property, and

 

(3) Receipts needed to substantiate cash and non-cash contributions.

 

This letter is for informational purposes only and is not intended as legal or tax advice. 

 

To begin, the Internal Revenue Service points out in IRS Publication 557 (February 2016)—“Tax Exempt Status for Your Organization” that: “The donor (the person donating the gift) is responsible for requesting and obtaining the written acknowledgment from the donee (the organization receiving the gift).”

 

When a receipt is required to substantiate a deduction, a donor must have it in his or her possession by the earlier of the actual filing of the return, or the April 18, 2017 due date, (or extended due date) for the return.

 

Be advised that the Rules are Numerous—and Overlapping.

 

I. Non-Cash Donations.

 

For some non-cash charitable gifts, Form 8283 (Noncash Charitable Contributions) must be filed. That form and its instructions are enclosed. The form is the latest available today.

 

Before filing your income tax return, I suggest that you check the IRS Web site, www.irs.gov, for the latest forms and instructions for any last-minute changes.

 

A. If your non-cash gifts for the year total more than $500, you will have to include Form 8283 with your income tax return. Section A—the simpler part of the form—is used to report gifts valued at $5,000 or under. Section A can be completed by you or your tax return preparer.

 

B. When the property’s value is more than $5,000 ($10,000 for closely held stock), you will generally need to have it appraised. The appraiser’s findings are reported in Section B of Form 8283.

 

Those rules also apply if you give “similar items of property” with a total value above $5,000—even if you gave the items to different charities.

 

C. Similar Items of Property are items of the same generic type, including stamps, coins, lithographs, paintings, books, non-publicly traded stock, land and buildings. For example, if you have six paintings worth $1,000 each and contribute each one to six different charities, the appraisal rules would apply.

 

D. Special Rule for Publicly Traded Securities. You don’t need an appraisal or Section B of Form 8283 for gifts of publicly traded securities, even if their total value exceeds $5,000. But you must report those gifts (when the value is more than $500) by completing Section A of Form 8283 and attaching it to your return.

 

E. Closely Held Stock. For gifts of non-publicly traded stock, an appraisal is not required as long as the value is NOT over $10,000, but part of Section B of Form 8283 must be completed if the value is over $5,000.

 

And if the gift is valued at over $10,000, then both an appraisal and Section B of Form 8283 are required.

 

II. Appraisals.

 

A. If you need an Appraisal, the gift must be made within sixty (60) days after the date of the appraisal.

 

  (1) The property can be appraised after the date of the gift, but, in that case, the appraisal must state the property’s value on the date of the gift.

 

  (2) You must receive the appraisal by the due date (including extensions) of the return on which the deduction is first claimed.

 

  (3) It is essential to complete Section B of Form 8283 and to attach that form to your tax return. 

 

  (4) Section B of Form 8283 must be signed by the appraiser and by the charity that received your gift.

 

B. Qualified Appraisal. A qualified appraisal is an appraisal document that is prepared by a qualified appraiser in accordance with generally accepted appraisal standards and otherwise complies with the qualified appraisal requirements.

 

C. Qualified Appraiser. The requirements to be a “qualified appraiser” are stringent.

 

The definition is critically important: if there is no qualified appraiser, there can be no deduction for property gifts valued over $5,000 (over $10,000 for closely held stock).

 

Under the current definition, a Qualified Appraiser is an individual who 

 

  (1) Has earned an appraisal designation from a recognized professional appraiser organization or has otherwise met minimum education and experience requirements (established by the IRS in regulations);

 

 (2) Regularly performs appraisals for which he or she receives compensation; and

 

  (3) Can demonstrate verifiable education and experience in valuing the type of property for which the appraisal is being performed.

 

An individual has education and experience in valuing the relevant type of property, as of the date the individual signs the appraisal, if the individual has:

 

  (1) Successfully completed (for example, received a passing grade on a final examination) professional or college-level coursework in valuing the relevant type of property, and 

 

  (2) Has two or more years of experience in valuing the relevant type of property; or

 

  (3) Earned a recognized appraisal designation for the relevant type of property.

 

Ifs, Ands, Buts. A qualified appraiser may NOT be related to—or regularly employed by—you or the charitable donee and may NOT be a party to the transaction by which you acquired the property being appraised, unless the property being appraised is donated within two (2) months of the date of acquisition and its appraised value does not exceed the purchase price.

 

D. Appraisal Fee. Generally, no part of the appraisal fee can be based on a percentage of the property’s appraised value. An appraisal fee isn’t a charitable gift. If you itemize, the appraisal fee is deductible on your income tax return as a miscellaneous deduction. But it’s only deductible if it—together with other miscellaneous deductions—exceeds a 2 percent of adjusted gross income floor.

 

III. Special Rule for Artwork. If you donate artworks with a total value of $20,000 or more, your return has to include a copy of the signed appraisal itself, not just Section B of Form 8283. If any single artwork is worth $20,000 or more, IRS may ask you for an 8×10 color photo (or a 4×5 color slide) of the donated property. You don’t have to send the photo with your tax return; just have one ready, if it is requested.

 

IV. Special Rule for Very Large Gifts. For gifts valued at over $500,000, the donor must attach the qualified appraisal—as well as Section B of Form 8283—to their tax return.

 

For purposes of the dollar thresholds, property and all similar items of property donated to one or more charitable donees are treated as one property.

 

An appraisal need not be attached for contributions of cash, inventory, publicly traded stock, or intellectual property. As noted above, a copy of the appraisal must be attached to the tax return when an artwork is worth $20,000 or more.

 

 

 

 

V. Gifts of Clothing or Household Items. No deduction is allowed for a contribution of clothing or a household item unless the item is in good condition or better at the time of the contribution and the donor meets the substantiation requirements.

 

A contribution of a single item of clothing or a household item that is NOT in good condition or better, for which a deduction of more than $500 is claimed, requires that the donor submit with the return on which the deduction is claimed a qualified appraisal prepared by a qualified appraiser and a completed Form 8283 (Section B).

 

The term “Household Items” includes furniture, furnishings, electronics, appliances, linens and other similar items.

 

Note: Food, paintings, antiques and other objects of art, jewelry, gems and collections are not household items.

 

VI. Used Car Donations. The deduction for charitable contributions of autos, other motor vehicles, boats and airplanes exceeding $500 depends on the use of the vehicle by the charity.

 

A deduction is NOT allowed unless the taxpayer substantiates the contribution by a contemporaneous written acknowledgment by the charity.

 

(1) If the charity sells the vehicle without any significant intervening use or material improvement of the vehicle, the deduction is the smaller of the gross proceeds from the sale or the vehicle’s fair market value on the date of the contribution.

 

  (a) The acknowledgment, which is on IRS Form 1098-C (or a statement containing the same information), must contain the name and taxpayer identification number of the donor and the vehicle identification (or similar) number.

 

  (b) The acknowledgment must provide a certification that the vehicle was sold in an arm’s length transaction between unrelated parties and state the gross proceeds from the sale.

 

(2) If the charity makes a significant intervening use or makes a material improvement to the vehicle, the deduction is the fair market value at the time of the contribution.

 

  (a) The acknowledgment must contain a certification of the use or material improvement of the vehicle and the duration of that use. 

 

  (b) The acknowledgment must also contain a certification that the vehicle will not be transferred in exchange for money, other property or services before completion of that use or improvement.

 

(3) If the charity gives or sells the vehicle to a needy individual at a price significantly below fair market value in direct furtherance of a charity’s charitable purpose of relieving the poor and distressed or the underprivileged in need of a means of transportation, the deduction is the fair market value at the time of the contribution.

 

   (a) The Charity must provide an acknowledgment regarding the sale.

 

  (b) The acknowledgment must substantiate the fair market value of the vehicle at the time of the sale.

 

(4) Contemporaneous written acknowledgment. The charity must provide a written acknowledgment within thirty (30) days of sale of a vehicle that is not significantly improved or materially used by the donee, or, in all other cases, within thirty (30) days of the contribution.

 

VII. Penalties: A charity will be penalized for knowingly furnishing a false or fraudulent acknowledgment, or knowingly failing to furnish a timely acknowledgment showing the required information.

 

You might want an appraisal (even if your gift doesn’t require one) in case you have to convince the IRS of the property’s worth. And Form 8283 asks how you valued your gift.

 

Generally, if a charity receives a gift that is subject to the appraisal rules (and it signed Form 8283), the charity must report on Form 8282 to both the IRS and the donor if it disposes of the gift within three (3) years.

 

However, the charity needn’t report its disposal of an item that you certify is worth $500 or less. Form 8283 has a section for that purpose (Section B, Part II).

 

VIII. Substantiation of Non-Cash Charitable Contributions.

 

A. Substantiation of Non-Cash Charitable Contributions of LESS than $250. An income tax charitable deduction is NOT allowed for non-cash charitable contributions of less than $250 UNLESS the donor maintains for each contribution a receipt from the donee showing:

 

  (1) The name and address of the donee;

 

  (2) The date of the contribution;

 

  (3) A description of the property in sufficient detail (taking into account the value of the property); and

 

  (4) For securities, the name of the issuer, the type of security, and whether the securities are publicly traded securities.

 

B. Substantiation of Non-Cash Charitable Contributions of $250 or MORE. To deduct any gift of $250 or more, you must have a written receipt from the charity describing (but not valuing) the gift.

 

  (1) If any goods or services were given to you in exchange for your gift, the receipt must describe them and contain a good faith estimate of their value.

 

  (2) If the charity provided NO goods or services in consideration of your gift, the written receipt must so state. The receipt need not contain your Social Security number.

 

  (3) Generally, separate payments are considered separate contributions for purposes of the $250-or-more threshold unless the payments are made on the same day.

 

IX. Cash Gifts. For cash gifts, regardless of the amount, record keeping requirements are satisfied only if the donor maintains as a record of the contribution a bank record or a written communication from the donee showing the name of the donee and the date and amount of the contribution.

 

(A) Bank Record or Written Communication Required. No income tax charitable deduction is allowed for a gift in the form of cash, check or other monetary gift unless the donor substantiates the deduction with a bank record or a written communication from the donee showing the donee’s name, the contribution date and the gift amount.

 

(B) Monetary gift includes a transfer of a gift card redeemable for cash and a payment made by credit card, electronic fund transfer, an online payment service, text message or payroll deduction.

 

(C) Bank records include a statement from a financial institution, an electronic fund transfer receipt, a canceled check, a scanned image of both sides of a canceled check obtained from a bank website, or a credit card statement.

 

  (1) Bank or credit union statements should show the name of the charity and the date and amount paid. Credit card statements should show the name of the charity and the transaction posting date.

 

  (2) The record keeping requirements will not be satisfied by maintaining other written records. Donations of money include those made in cash, by check, electronic funds transfer, credit card, text message and payroll deduction.

 

(D) Written communication includes electronic mail correspondence.

 

XI. Contributions made by Payroll Deduction. For a charitable contribution made by payroll deduction, a donor is treated as meeting the substantiation requirements if no later than the date for receipt of substantiation the donor obtains:

 

  (1) A pay stub, Form W-2, “Wage and Tax Statement,” or other employer-furnished document that sets forth the amount withheld during the taxable year for payment to a donee; and

 

  (2) A pledge card or other document prepared by or at the direction of the donee that shows the name of the donee.

 

XII. Trusts.

 

(A) Transfers to Charitable Remainder Trusts. The above substantiation requirements do NOT apply to a transfer of cash, check, or other monetary gift to a Charitable Remainder Unitrust or a Charitable Remainder Annuity Trust.

 

(Charitable Remainder Annuity Trust share many common advantages with two important distinctions. A Charitable Remainder Unitrust pays the beneficiary a fixed percentage of the principal of the trust as it is revalued annually. This type of trust provides the donor with the flexibility to make additional gifts to the trust. In contrast, a Charitable Remainder Annuity Trust pays the beneficiary a fixed dollar amount, which is determined when the trust is established. Additional gifts to this type of trust are not permitted. Depending on your needs, you may find one Trust arrangement more attractive than the other.

 

The requirements do apply, however, to a transfer to a Pooled Income Fund. So it is necessary to get a timely receipt meeting the $250-or-more substantiation rules for a gift to a pooled income fund.

 

(A Pooled Income Fund is a type of Charitable Mutual Fund created from securities or cash donated by an individual, a family, or a corporation to a charity, which is then invested to provide dividends for both the donor and charity. The donations are irrevocable and tax-deductible and must be from personal assets.)

 

(B) Transfers to Gift Annuities. When the gift portion of a gift annuity or a deferred payment gift annuity is $250 or more, a donor must have an acknowledgment from the charity stating whether any goods or services—in addition to the annuity—were provided to the donor. If no additional goods or services were provided, the acknowledgment must so state. The acknowledgment need not include a good faith estimate of the annuity’s value.

 

(C) Charitable Remainder Gifts in personal residences and farms. Regulations do not specifically deal with these gifts. However, to be safe, get a timely receipt meeting the $250-or-more substantiation rules.

 

(D) Grantor Charitable Lead Trusts for which an income tax charitable deduction is allowable. The regulations do not specifically deal with these gifts, and they may also be exempt. Nevertheless get a timely receipt meeting the $250-or-more rules.

 

(Charitable Lead Trusts ("CLTs") are designed to provide income payments to at least one qualified charitable organization for a period measured by a fixed term of years, the lives of one or more individuals, or a combination of the two; after which, Trust assets are paid to either the grantor or to one or more non-charitable beneficiaries named in the Trust instrument.)

 

XIII. Religious Organizations. 

 

(A) If you made a gift of $250 or more to a religious organization and received in return solely an intangible religious benefit that generally is NOT “sold in commercial transactions outside the donative context” (e.g., admission to a religious ceremony), the receipt must say so, but need not describe or value the benefit.

 

But this exception does not apply, for example, to tuition for education leading to a recognized degree, travel services, or consumer goods.

 

(B) If a charity receives a gift of over $75 from you for which you received or were entitled to a benefit (other than solely an intangible religious benefit), the charity must, in connection with the solicitation or receipt of the gift, give you a written statement that:

 

  (1) Informs you that the gift deduction is limited to the excess of any money (and the value of any property other than money) contributed by you over the value of the goods or services provided by the charity; and

 

  (2) Provides you with a good faith estimate of the value of the goods or services.

 

However, both you and the charity may generally disregard token benefits you receive for a contribution.

 

 

XIV. Fundraising Campaigns. The IRS has ruled that a charitable gift is fully deductible if

 

(1) It is made in a fundraising campaign in which the charity informs its donors how much of their payment is a deductible contribution; and

 

(2) The donor receives benefits having a fair market value of $106 or two (2%) percent of the payment, whichever is less; or

 

(3) The donor gives the charity at least $53 and receives a low-cost or token item (e.g., a bookmark, mug or T-shirt).

 

  (a) The token item must bear the charity’s name or logo, and

 

  (b) Cost the distributing charity—or the charity on whose behalf the item is distributed—no more than $10.60.

 

(4) Donors need not reduce their deductions when they receive unsolicited free items that cost the charity—or the charity on whose behalf the item is distributed—no more than $10.60.

 

Note: Those token benefit amounts are for 2016 charitable gifts. The dollar figures are adjusted annually for inflation.

 

XV. THE RECEIPT-IN-HAND RULE—THIS IS CRUCIAL: You must have the receipt in your possession before you file your income tax return. If you file your return after the due date (or after an extended due date), the receipt must nevertheless have been in your hand by the due date (plus any extensions).

 

Please call if you have any questions—and the earlier the better so that last-minute problems can be avoided.

 

HELP IS AVAILABLE

 

Click on the Contact Us Link or go to the Virtual Estate Planning (VEPS) Page of our Web site. 

 

As a reminder, this letter is for informational purposes only and is not intended as legal or tax advice. 

 

The information contained in this e-mail message, together with any attachments thereto, is intended only for the personal and confidential use of the addressee[s] named above. The message and the attachments are or may be attorney-client or other privileged or protected communications. If you are not the intended recipient of this message, or authorized to receive it for the intended recipient, you have received this message in error. You are not to review, use, disseminate, distribute or copy this message, any attachments thereto, or their contents. If you have received this message in error, please immediately notify us by return e-mail message, and delete the original message.

 

DISCLOSURE: To ensure compliance with applicable Internal Revenue Service Regulations, IRS Circular 230 requires us to inform you that any U.S. federal tax advice contained in this communication (including any attachments or directed links) is not intended or written to be used, and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Service Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

 

 

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