Estate Administration – The Not-So-Hidden Exception to Self-Dealing Prohibitions

The rules governing private foundations are extensive, but the thorniest restrictions are arguably those surrounding self-dealing. Private foundations are prohibited from engaging in nearly all direct or indirect transactions with disqualified persons (as defined below).[1]

Clients who wish to leave a portion of their estate to their private foundations must carefully consider the self-dealing rules, particularly when a donor carries a great portion of their wealth in illiquid assets, such as family business interests or tangible personal property.

Wise advisors will encourage clients to plan for the disposition of these assets during life. Too often, this does not occur, and private foundations receive assets upon the donor’s death that present challenges. Fortunately, the Internal Revenue Service (IRS) has given us a rare gift — the estate administration exception under Section 4941 of the Code.

Consider the Following Scenario

You represent various members of an influential family known as the Freeman Family. The Freeman Family’s wealth is held primarily in a textile business that has remained wholly in the family for over 50 years and a collection of preeminent contemporary art.

The senior generation established the Freeman Family Foundation to support economic advancement in underrepresented communities and to provide arts and other cultural education and programming to young people around the country. A member of the Freeman Family has expressed her desire to leave the majority of her assets to the Freeman Family Foundation. She requests your advice on how to proceed.

Self-Dealing Defined and its Consequences

Pursuant to Section 4941(d)(1) of the Internal Revenue Code (IRC), self-dealing is any direct or indirect transaction between a private foundation and a disqualified person.

The IRC provides six technical definitions of direct self-dealing, including, but not limited to: (a) any sale, exchange, or leasing of property between a private foundation and a disqualified person; (b) the furnishing of goods, services, or facilities between a private foundation and a disqualified person; and (c) transfer or use of the income or assets of a private foundation by a disqualified person. In contrast, indirect self-dealing is explained only by way of example and by defining what does not constitute indirect self-dealing.[2]  

Though a disqualified person is commonly assumed to be the donor and the donor’s family, disqualified persons also includes an owner of more than 20% of a business that is a substantial contributor as well as a corporation, partnership, trust, or estate in which disqualified persons own or hold more than 35% of the stock, profits interest, or beneficial interests, as applicable.[3]    

Clients that are deeply involved with their private foundations might find compliance with the self-dealing rules difficult, but compliance is critical.  Violation of the rules against self-dealing results in a steep excise tax on the disqualified person. This is a two-tiered tax. First, an initial 10% tax is applied to the amount involved in the self-dealing transaction for each year in the tax period.^[4] A 5% tax may also be imposed on any foundation manager who knowingly participates in an act of self-dealing, unless such participation was not willful or due to reasonable cause.

If the self-dealing transaction is not unwound during the tax period, a 200% tax may be applied to the disqualified person for each full or partial year in the taxable period.  An additional 50% excise tax may also be imposed on a foundation manager who refuses to cooperate with undoing the prohibited transaction.

Application of the Rules to the Freeman Family

Textile Business. Interests in the Freeman Family textile business could open the door to self-dealing issues for the Freeman Family Foundation. If a member of the Freeman Family contributed her closely held family business interest to the Freeman Family Foundation, the donor’s family members, or, say, a trust for the benefit of those individuals, would own the remaining interests. This would make disposing of the asset complicated, as described below.[5]

More than likely, the Freeman Family Foundation would want to sell this interest and invest in marketable securities, bonds, or other assets more in line with its investment objectives. Unfortunately, a family business does not typically welcome outside shareholders. Even if it would, the Freeman Family Foundation would struggle to find a buyer for a partial interest in a family business. The only natural buyer for this asset would be a family member and, therefore, a disqualified person. However, the self-dealing rules would prohibit the Foundation from selling the interest to a family member who is a disqualified person.

Contemporary Art Collection. As a general rule, a member of the Freeman Family may leave her art collection (and any other tangible personal property) to the Freeman Family Foundation without triggering self-dealing rules. However, given the value of the client’s collection, advisors should review the provenance of the art to confirm that the client is indeed the sole owner of the works. If owned by more than one family member, there would then be practical concerns regarding where the artwork was stored and/or displayed.  If the artwork continued to hang in the home of such family member, that family member would be using foundation property for his or her own enjoyment — an obvious concern.  As the foundation could not lease the artwork to the family, the co-owner would instead be forced to lease the artwork, free of charge, to the foundation.

In both scenarios, the client should be advised to dispose of troublesome assets during life or at least plan for disposition to non-charitable recipients. But, as all advisors know, many clients put off action until it is too late. So, when a member of the Freeman Family dies, how can the self-dealing penalties be avoided?

Estate Administration Exception to Self-Dealing

Fortunately, the IRC provides some exceptions to the self-dealing rules.[6] The most relevant exception, and the focus of this article, is the estate administration exception.

Section 4941 of the IRC states that indirect self-dealing does not include a transaction involving a private foundation’s interest in estate property, regardless of when title to the property vests under local law, if the following requirements are satisfied:

1. Power of Sale – Executor has the power to sell the property, power to reallocate the property, or is required to sell the property pursuant to an option.
2. Court Approval – The transaction must be approved by the probate court. This will likely also involve the state Attorney General and public disclosure of the transaction.
3. Timeliness – The transaction must occur before the estate is considered terminated for federal income tax purposes. In the case of a revocable trust, the transaction must occur before the trust is subject to Section 4947.
4. Fair Market Value – The estate or trust must receive at least the fair market value for the foundation’s interest in the property. As relevant case law demonstrates, the valuation rules must be strictly followed to avoid a potential bargain sale situation.
5. Nature of Consideration – Consideration must be at least as liquid as the assets being given up.  The transaction must result in the foundation receiving an asset related to its charitable purpose, or it must be required under the terms of a pre-existing option.[7]

For many clients, the implicit difficulties in adhering to these rules is enough motivation to plan ahead for disposition. However, this is not always practical, or even possible. The estate administration exception is a powerful tool when reallocation of assets does not occur during a client’s life.

Complexities of the Estate Administration Exception

The most complex requirements of the estate administration exception rules are that the transaction be done at fair market value and that the private foundation receive an interest or expectancy at least as liquid as the one it previously had. As relevant case law demonstrates, the IRS’ rules of valuation surrounding these sales must be strictly followed.

An often-overlooked component of the estate administration exception is the sale under the option agreement.  For this unique exception to apply, the donor can provide heirs with an option agreement that would allow them to purchase the property at fair market value.  Upon the donor’s death, the property will transfer to the estate subject to the option, the executor (or trustee, as the case may be) is then obligated to sell the assets to the heirs if they exercise the option. Of course, fair market value must be determined by a third-party appraisal and court approval is necessary in order to avoid the self-dealing rules.

Importantly, the option must be considered when determining the fair market value of the asset. The value of the asset under the option should not vary too greatly from the fair market value. If it does, the estate risks being subject to a valuation mismatch — when the value for inclusion and deduction purposes disconnect. [8] In that unfortunate instance, additional estate tax could be due. [9]  To avoid this result, advisors should consult case law (or his or her client’s legal advisor) before recommending such an agreement. [10]

Let’s apply this to the Freeman Family textile business. As a closely held family business, the shareholders (all disqualified persons) would enter into an agreement, for nominal consideration, giving the other shareholders an option to purchase interests in the textile company.  If a family member exercises the option, an appraisal should be obtained, and court permission timely sought.  Following the sale, the foundation could then receive cash or cash-equivalents, rather than the family business, and avoid any self-dealing (or excess business holding) issues.

Ultimately, the estate administration exception to self-dealing prohibitions is a helpful and powerful tool for charitably inclined clients with complex assets. Advisors should continue to encourage clients to plan around these assets during life, but clients and advisors alike should take comfort in the backstop provided by Section 4941 of the IRC.