What is self-dealing for private foundations?

Self-dealing within the realm of private foundations is a critical concept, encompassing a range of prohibited transactions specifically involving foundation insiders, known as "disqualified persons." These stringent rules are crafted to safeguard the foundation's assets from being misappropriated for personal gain. Essentially, the self-dealing rules prohibit most forms of financial interactions between a private foundation and any disqualified person, regardless of the transaction's size. These regulations extend even to transactions involving unrelated third parties if they indirectly confer a financial or economic benefit to a foundation insider.

Understanding Disqualified Persons

Disqualified persons encompass a variety of individuals and entities, such as significant donors, foundation managers, their families, and legal entities like businesses and trusts, who are in a position to exercise influence over the foundation. For a detailed explanation of disqualified persons, please visit our comprehensive discussion through this link.

The Broad Scope of Self-Dealing Scenarios

Private foundations rarely face legal complications, but when they do occur, self-dealing rules are often central to these issues. Any business or transactional relationship involving the foundation and its disqualified persons should be handled with care as it may be construed as self-dealing. The self-dealing provisions can be triggered by a variety of transactions, both direct and indirect, across numerous arrangements and contexts. It's particularly important for foundations to exercise caution in dealings with businesses owned or controlled by disqualified persons. These interactions pose a high risk of violating self-dealing rules, given their close association with individuals who have significant influence within the foundation. An example of direct self-dealing is when a foundation engages in business with an entity controlled by one of its managers, such as purchasing supplies from a retail store owned by a foundation director.

Indirect self-dealing can manifest in various forms. Consider a scenario where a private foundation pays higher-than-market fees to a financial advisor, who also services one of the foundation's directors. If this director subsequently receives favorable treatment, this arrangement could be classified as indirect self-dealing, as the foundation's payments indirectly benefit the director, potentially prioritizing personal advantage over the foundation's philanthropic goals.

A notable misconception in foundation management is the belief that a transaction with a disqualified person is permissible if it appears fair or beneficial to the foundation. This assumption is frequently incorrect; even transactions that ostensibly benefit the foundation can still constitute self-dealing. For instance, if a board member rents office space to the foundation at a significantly reduced rate, this would still be considered self-dealing, despite the apparent benefit to the foundation. The key misunderstanding here is assuming that fairness or benefit to the foundation negates the self-dealing rule, which is not the case. The law often focuses on the nature of the transaction and the parties involved, rather than the transaction's outcome.

Clarifying Donor Misconceptions About Asset Ownership

A crucial aspect often misunderstood by donors, whether they are individuals, families, or for-profit entities, is the concept of asset ownership once a donation is made to a private foundation. Upon donating, these assets become the property of the foundation, a distinct legal entity bound by numerous regulations. Many donors fall into the trap of perceiving the foundation's assets as an extension of their personal or corporate finances, assuming that any payments made by the foundation are inherently fair and charitable. This misinterpretation can lead to serious self-dealing violations. It is imperative for donors to understand that once assets are contributed to a foundation, they enter a realm of stringent legal and ethical standards designed to ensure that these resources are used solely for the intended philanthropic objectives.

Exploring Common Self-Dealing Transactions

It's crucial to understand that a wide array of transactions falls under the umbrella of the self-dealing rules. Essentially, any transaction between a foundation and a disqualified person is initially regarded as self-dealing, unless an exception is explicitly outlined in the Internal Revenue Code (see below for a discussion of exceptions). Therefore, the following transactions merely serve as illustrative instances of self-dealing:

Property Transactions: This includes any buying, selling, or exchanging property between a private foundation and a disqualified person. It's crucial to note that self-dealing remains a concern, even if the transaction appears to favor the foundation.

Rental and Leasing Agreements: Self-dealing is generally triggered if a foundation rents office space from a disqualified person or a controlled entity. This holds true even when the transaction may appear beneficial to the foundation, such as when the foundation secures office space at a significantly discounted rate. However, an exception in the Internal Revenue Code does exist if the foundation is allowed to use the space a rent-free basis.

Goods, Services, and Facilities: Transactions that encompass goods, services, or facilities exchanged between the private foundation and a disqualified person are typically categorized as self-dealing. Importantly, the terms of the deal do not alter this categorization; any transaction, regardless of its perceived benefits or terms, falls within the purview of these rules.

Lending and Borrowing: Lending money or extending credit between a private foundation and a disqualified person is generally considered self-dealing. This holds true even if the foundation borrows money from a disqualified person at below-market interest rates. However, an exception exists where a disqualified person lends money to a private foundation interest-free, provided the loan is used exclusively for charitable purposes.

Compensation Concerns: The self-dealing rules must also be considered if a private foundation pays its leadership, which includes directors, trustees, managers, and other disqualified individuals. The Internal Revenue Code does provide an exception permitting compensation for specific leadership and managerial roles (as we shall explore later on). However, paying excessive compensation in these scenarios would still be classified as self-dealing.

Expense Reimbursement: Self-dealing can occur when the foundation pays or reimburses unreasonable or unnecessary expenses of a disqualified person. For instance, if a foundation manager were to utilize their foundation-issued debit card for personal shopping, it serves as an unequivocal instance of self-dealing. A clear boundary must be maintained between expenses that further the foundation's charitable mission and those that serve personal interests.

Unwarranted Benefit: Unwarranted Benefit occurs when a disqualified person, such as a trustee or board member, utilizes the income, assets, or facilities of a private foundation in a way that confers upon them an advantage or benefit not in line with the foundation's charitable objectives. It's important to note that such benefits aren't limited to monetary or tangible gains; they can also encompass the simple use of the foundation's assets. A clear instance of this is when a disqualified person uses the foundation's office space for personal business activities. This misuse can take various forms, such as conducting meetings with personal business partners or clients in the foundation's conference rooms, or even using the foundation's office address for private business correspondence.

Key Exceptions to Self-Dealing Regulations

The Internal Revenue Code does provide for certain exceptions to the general self-dealing rules for private foundations. Below are key exceptions and permissible transactions:

Free Services & Goods: Providing free services and physical goods to a private foundation is not considered self-dealing.

Rent-Free Office Space: Allowing a private foundation to use office space free of charge is generally permissible.

Zero-Interest Loans: Disqualified persons can lend money interest-free to the foundation, provided it's used solely for charitable purposes. It is important to note, however, that the reverse scenario — where disqualified persons borrow money from the foundation — is strictly prohibited, regardless of the terms or potential benefits to the foundation.

Employee Compensation: Paying reasonable compensation to disqualified persons as employees is allowable under specific conditions. The job must be reasonable and necessary for the foundation to carry out its charitable purpose. Further, the job must be for “personal services,” which is a specific term described in the Internal Revenue Code. We will discuss this further below.

Compensation for “Personal Services”: Foundations may compensate disqualified persons for “personal services” that are essential and legitimate for advancing their charitable mission. “Personal Services” are narrowly defined with a focus on white-collar professions such as general management, accounting, legal services, and banking and investment services. It's important to note that roles which are not managerial or white-collar typically do not qualify under this category and could potentially violate self-dealing rules. For instance, a foundation can remunerate a director for providing investment management services, provided that the fees charged are reasonable. More details on this will be discussed later.

Reimbursement of Charitable Expenses: Generally, it's permissible for private foundations to reimburse disqualified persons for expenses that are both reasonable and necessary to the foundation’s charitable mission. For instance, if a foundation director inadvertently pays for a legitimate foundation expense out-of-pocket, the foundation can reimburse them. However, all such reimbursements should be conducted under an accountable plan to ensure proper oversight and compliance.

Fair Access Transactions: Private foundations are permitted to extend goods, services, or facilities to disqualified persons, provided these offerings are equally available to the general public. The key condition is that these benefits must be provided to disqualified persons in a manner that is equal to how they are offered to the general public. For example, if a foundation sponsors a community swimming pool, disqualified individuals may use it as long as their access and treatment are the same to that of the general public.

De-minimis Benefit: Transactions that yield only minimal, incidental, or negligible benefits to disqualified persons are often permissible. This is based on the understanding that certain benefits are so insignificant that they neither meaningfully affect the foundation's operations nor contradict the spirit of the self-dealing rules.

Analyzing the Reasonable Compensation Exception

The self-dealing rules typically prohibit financial interactions between a foundation and any disqualified person. However, a total prohibition on reasonable compensation to such individuals would lead to impractical situations. For instance, without this exception, hiring key positions like a President would be unfeasible, as the individual would become a disqualified person upon employment. This exception is critical not only to enable the filling of essential roles within the foundation but also to ensure its operations are on par with standard practices in the non-profit sector. Moreover, it allows foundations to offer competitive salaries and benefits, which are vital for attracting and retaining the skilled professionals necessary for effective governance and management.

The exception allows for the compensation of disqualified persons when it is both necessary and reasonable for the foundation's charitable purposes and specifically pertains to "personal services." Let's explore these elements in detail:

Necessity: The necessity component requires that services for which compensation is provided must be essential and directly related to the foundation's charitable mission. It implies that the service contributes meaningfully to the foundation's ability to achieve its objectives. For example, hiring a program director to oversee grant distributions would be considered necessary as it directly facilitates the foundation's mission of philanthropy and aid distribution.

Reasonableness: The concept of reasonableness in compensation hinges on the principle of market parity. This means the compensation should align with what similar organizations within the foundation’s peer group would typically offer for equivalent services. The IRS assesses reasonableness by considering the entirety of the compensation package, including salary, bonuses, fringe benefits, deferred compensation, and any additional perks. Foundations typically evaluate reasonableness by conducting market surveys or consulting independent firms that specialize in compensation analysis.

Personal Services: To qualify under the reasonable compensation exception, the service in question must not only be necessary and reasonably compensated but also classified as a "personal service." This category traditionally includes roles within the foundation's governing board and essential staff positions, integral to the foundation's core operations. The IRS defines personal services quite narrowly, with a clear white-collar bias. Acknowledged personal services encompass roles like general management, accounting, legal services, and general banking and investing services.

This definition reflects an inclination towards managerial and professional (white-collar) roles, which are directly related to the strategic and operational management of the foundation. It's important to note that non-managerial and non-white-collar tasks are typically not included in this definition. For instance, services that might be essential but don’t fit the white-collar criterion, such as certain types of technical or manual labor, are generally not considered personal services under these rules.

Best Practices for Shared Office Spaces in Foundations

Shared office spaces between family businesses or for-profit companies and their foundations are commonly seen in practice. These setups are straightforward and permissible when the family or company bears all related expenses, including rent, utilities, and administrative services. However, when a private foundation contributes to these expenses, the situation becomes complex, opening the door to potential self-dealing violations. Let’s examine these complexities more closely:

Rent Considerations: A foundation is barred from paying rent to a disqualified person under self-dealing rules, even at market rates or below market rates. This issue arises if the foundation subleases from a related business or reimburses them for rent. The best practice to avoid self-dealing is for the foundation to lease space directly from an independent third party.

Allocation of Service Costs: The foundation can share costs related to services like janitorial work, utilities, or maintenance by paying its fair share directly to the service providers, such as janitorial companies. It is crucial to avoid scenarios where the foundation pays the family business, which then pays the service provider. Detailed records should be maintained to demonstrate that these payments are fair and equitable.

Shared Office Equipment: When it comes to equipment like copiers and fax machines that are shared in the office, the foundation should split costs based on actual usage. Importantly, payments for these shared resources must be made directly to third-party vendors who are not considered disqualified persons. It is crucial that the foundation does not direct any payments for these expenses to family or corporate businesses associated with the foundation.

Main Exception for Shared Resources: A key exception allows a disqualified entity, such as the family business or for-profit company, to provide goods, services, or facilities to the foundation at no charge. This is permissible as long as the resources are used exclusively for charitable purposes.

Managing Board Overlap Between Foundations and Public Charities

When a private foundation considers granting funds to a public charity, it's not uncommon to find overlapping board memberships - where an individual serves as a board member for both the grantor (foundation) and the grantee (charity). According to self-dealing regulations, such a grant isn't automatically deemed a violation simply because a member of the public charity's leadership also holds a significant role or is a major contributor in the foundation. However, this scenario can still raise concerns about potential conflicts of interest.

Even though the act of making a grant under these circumstances doesn't constitute a self-dealing violation per se, the situation is often viewed with caution. The overlap of board members between the foundation and the charity can lead to perceptions of bias or conflict, even if none exists. To address these concerns and maintain transparency and integrity, many foundations adopt robust conflict of interest policies.

These policies typically require that any foundation board member who is also involved with the grantee charity must fully disclose their dual roles. More importantly, they should also abstain from participating in any decision-making process related to the grant. This approach ensures that grant decisions are made objectively, without undue influence from individuals with interests in both organizations.

Navigating Self-Dealing Concerns in Enforceable Pledges

The regulations around self-dealing clearly forbid foundations from fulfilling an enforceable pledge made by a disqualified person. The enforceability of a pledge depends on state law, which can vary. However, written pledges that are signed and relied upon by a charity are often considered enforceable. The rationale is that an enforceable pledge by a disqualified person is essentially a personal debt or obligation of that individual or entity. As such, it's inappropriate for them to settle this personal obligation using the funds of a charitable foundation. To avoid this issue, individuals or corporations wishing to have their pledges fulfilled by their foundation should ensure that the pledges are made directly by the foundation itself, not by the individual or corporation.

Understanding Penalties for Self-Dealing Violations

When self-dealing happens in a foundation, it's the disqualified persons and foundation managers involved, not the foundation itself, who face penalties. The main person responsible for the self-dealing, often called the self-dealer, bears the brunt of these penalties. For example, if a foundation director uses the foundation's funds for personal use, they are the self-dealer and thus liable for penalties. Additionally, penalties can also be applied to foundation managers who approve these transactions. To fix a self-dealing issue, it usually involves returning the specific asset involved or paying an amount equal to the benefits gained. The most common penalty is an excise tax, which is a tax based on the amount of the self-dealing transaction. This tax is applied to the self-dealer and possibly the approving foundation managers. It’s important to remember that the foundation itself is generally not punished for these self-dealing violations.

Initial Tax on Self-Dealer (10%): When a self-dealing violation occurs, the involved disqualified person or entity, termed the "self-dealer," faces a 10% excise tax on the transaction amount. For instance, if a foundation covers the personal vacation travel expenses of a board member (the trip had no charitable or business purpose), the director, as the self-dealer, would be taxed at 10% of those expenses and must reimburse the foundation.

Initial Tax on Foundation Manager (5%): A foundation manager (board member or employee) who knowingly partakes in self-dealing may also be taxed. This tax is 5% of the transaction amount, capped at $20,000 per violation, provided the participation wasn't willful and had a reasonable cause, such as relying on legal counsel's advice.

Correction Action: To avoid additional taxes, the transaction involved in self-dealing must be corrected. This involves undoing the transaction to the extent possible, such as repaying any misused funds. The goal of this corrective action is to ensure that the foundation's financial position is not worse off than it would have been if the disqualified person had adhered to the highest fiduciary standards throughout the process. This means restoring the foundation to a state as close as possible to where it would have been without the self-dealing incident, thereby upholding the integrity and financial stability of the foundation.

Multi-Year Penalties: If a self-dealing act remains uncorrected, annual excise taxes can accumulate for both the self-dealer and involved foundation managers until correction. For example, a self-dealer could face a cumulative 30% penalty over three years (10% annually) if a violation persists uncorrected.

Second-Tier Tax: If the initial tax has been imposed and the transaction remains uncorrected within a certain timeframe stipulated by the IRS, a further tax may be levied. This includes a 200% tax on the self-dealer and up to 50% (maximum $20,000) on foundation managers per act of self-dealing. This second-tier tax is rare and typically applies when a self-dealer refuses to correct the violation.

Beyond Financial Penalties: Legal Consequences of Self-Dealing

Persistent or severe violations of self-dealing regulations can result in significant legal consequences. These may go beyond the financial penalties and involve direct legal actions against the foundation or its managers. Legal consequences can include injunctions, which are court orders requiring the foundation to cease certain activities or take specific actions to rectify the violation. In extreme cases, a foundation's tax-exempt status may be at risk. The IRS can revoke this status if it determines that the foundation has consistently engaged in self-dealing or other prohibited activities, fundamentally misusing its charitable assets.

State-Specific Penalties for Self-Dealing Activities

In addition to federal regulations, state laws may also impose penalties for self-dealing activities of private foundations. These laws can vary significantly from state to state. State-level penalties can include fines, additional taxes, or legal actions against the foundation or its managers. In some cases, these penalties can be applied in conjunction with federal penalties. It is also important for foundations to be aware of the potential for civil lawsuits from third parties affected by the self-dealing transactions, which can further compound the legal and financial repercussions.

Critical Questions to Prevent Self-Dealing in Foundations

To better understand self-dealing and prevent compliance issues, it is important to ask the right questions. The right questions can help identify potential red flags and steer foundations clear of troublesome legal complications. Here are some good questions to consider:

Conflict of Interest and Personal Benefits

Board Decisions Involving Personal Interests: Are there instances where board members participate in decisions where they have a personal financial interest?

Event Tickets: Is there a practice of using foundation-purchased tickets for fundraising events by spouses or other disqualified persons?

Grant and Pledge Alignments: Do foundation grants ever fulfill pledges made by board or staff members?

Investment Decisions: Do investment decisions benefit disqualified persons, directly or indirectly, such as investing in a business owned by a board member?

Asset Usage: Are there instances where disqualified persons use foundation assets (like vehicles, equipment, or property) for personal purposes?

Beneficiary Selection in Grantmaking: Are grants awarded to organizations where disqualified persons have significant influence or stand to benefit personally?

Financial Transactions and Compensation

Compensation Assessment: What measures are in place to ensure staff compensation and board fees are reasonable and justifiable?

Expense Reimbursements: Are there any reimbursements for travel or other expenses to spouses of foundation members?

Financial Transactions Scrutiny: Are there any financial interactions between the foundation and its board or staff members, beyond regular compensation?

Business and Family Ties

Contract Awards: Are contracts for goods or services awarded to companies owned or operated by disqualified persons or their families?

Employment of Relatives: Are family members of disqualified persons employed by the foundation, and if so, under what terms?

Real Estate Transactions: Does the foundation engage in buying, selling, or renting real estate from or to a disqualified person?

Loan Guarantees: Has the foundation ever guaranteed a loan for a disqualified person or related entity?

Office Sharing Concerns: Is the foundation's office space shared with any related parties, such as family members or associated businesses?


Navigating the complexities of self-dealing within private foundations requires a thorough understanding of the rules and regulations that govern these entities. As we have explored, self-dealing encompasses a broad spectrum of interactions, especially concerning disqualified persons, and adhering to these guidelines is crucial for maintaining the legal and ethical integrity of a foundation. While there are specific exceptions to these rules, it is imperative for foundation managers and donors to remain vigilant and informed to avoid potential violations. By continually educating themselves and asking the right questions, those involved in the management of private foundations can ensure that their operations not only comply with legal standards but also uphold the ethical principles essential to their mission.


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