Equivalency Determination & Expenditure Responsibility

In-Depth knowledge on Equivalency Determination & Expenditure Responsibility

Expenditure responsibility is the federally mandated procedure that a private foundation—and some public charities—must follow for any grant made to an organization that is not a public charity. This chapter of Mastering Foundation Law: The Council on Foundations Compendium of Legal Resources focuses on the steps of expenditure responsibility when granting to non 501(c)(3) organizations.

The Council actively asserts its leadership role in the global policy space to ensure a positive regulatory environment for global philanthropy. To do that, the Council develops substantive policy positions on behalf of its members and submits regulatory comments and letters to U.S. policymakers, foreign governments and intergovernmental bodies, and advocates before domestic and international bodies that set policies that impact cross-border philanthropy.

Legal issues arise when a private foundation makes a grant to an Initial Grantee that is not a 501(c)(3) organization or that re-grants the Foundation's funds to a Secondary Grantee that is not a 501(c)(3) organization. Most of those issues center around IRS expenditure responsibility rules: specifically, which organization—the private foundation or the Initial Grantee—is responsible for adhering to those rules, if any.

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NGOsource

NGOsource helps U.S. grantmakers streamline and save in their international giving. NGOsource is a project of TechSoup and was started with support from the Council on Foundations.

Council explanation of the Department of Treasury and the IRS issued proposed regulations applicable to private foundations seeking to make grants to foreign organizations using equivalency determinations. The guidance broadens the range of professionals on whose written advice a private foundation may rely when making such grants. Previously, reliance on the written opinion of counsel of the private foundation or grantee was permitted. The proposed regulations expand that class of professionals to attorneys, certified public accountants, or enrolled agents who are subject to certain professional conduct rules of the IRS, thereby removing one key obstacle to the creation of an equivalency determination repository. The regulations were issued in proposed form but private foundations may begin to rely upon them immediately. While the regulations are not explicitly applicable to public charities engaged in international grantmaking, the guidance should pave the way for public charities as well.