Private Foundations and Expenditure Responsibility: A Comprehensive Overview

by: Kyle Anderson
November 20, 2023
Glasses on a book

Expenditure responsibility is a critical legal and procedural framework for private foundations in the United States and is codified under U.S. tax law. This concept mandates that private foundations follow specific guidelines when granting funds to organizations not classified as public charities by the Internal Revenue Service (IRS). The primary emphasis of these procedures is to ensure that each grant is dedicated to charitable, educational, or other exempt activities, in line with the foundation's mission and upholding the trust placed in the philanthropic sector by the public.

The need to conduct expenditure responsibility arises when private foundations make grants to entities not recognized as public charities by the IRS. This often includes a broad range of organizations, such as those based outside the United States, for-profit entities engaged in charitable activities, and other non-traditional charitable organizations. Unlike grants to 501(c)(3) public charities, which are generally presumed to be for charitable purposes and are subject to less scrutiny, grants to these non-charitable entities require a higher level of oversight. By adhering to expenditure responsibility procedures, private foundations can extend their grant-making to a broader spectrum of organizations while ensuring compliance with federal tax laws.

If a private foundation fails to properly execute expenditure responsibility with any grant to a non-charitable organization, it can face significant consequences. These include excise tax penalties imposed on the foundation itself and potential personal penalties on foundation managers who knowingly approve non-compliant grants. These penalties are quite severe and they underscore the importance of rigorous compliance with expenditure responsibility requirements.

Due to the complexities involved in navigating these responsibilities, it is highly recommended for private foundations, particularly those engaging in international or non-traditional grantmaking, to seek specialized legal and financial advice. Professional advisors can provide invaluable guidance in understanding the nuances of IRS regulations, ensuring accurate record-keeping, and developing effective grant-making strategies that comply with federal laws while fulfilling the foundation's philanthropic goals.

When Expenditure Responsibility Is Not Required

Private foundations are typically exempt from exercising expenditure responsibility in certain situations. These exemptions are important as they simplify the grantmaking process for many types of grantees that are deemed to inherently meet the public charity criteria or are governed by other strict regulatory standards. These include:

1. 501(c)(3) Public Charities and Exempt Operating Foundations: Grants made to organizations recognized by the IRS as 501(c)(3) public charities are exempt from expenditure responsibility. These organizations have met stringent IRS requirements that ensure their operations are exclusively for charitable purposes. Exempt operating foundations, which are a specific type of 501(c)(3) organization, also fall under this exemption due to their direct charitable activities.

2. Churches and Other Religious Organizations: Grants to churches, synagogues, mosques, and other religious institutions are exempt. These organizations are generally considered to be operating for religious and charitable purposes, and the IRS often does not require them to file for 501(c)(3) status to recognize their tax-exempt status.

3. Certain Educational Institutions and Hospitals: Accredited educational institutions, such as universities, colleges, and primary or secondary schools, are typically exempt. The same goes for hospitals that meet certain criteria, as these institutions are generally presumed to be serving charitable purposes in education and healthcare.

4. Grants to Non-U.S. Entities Equivalent to 501(c)(3) Public Charities: If a private foundation conducts a thorough evaluation and determines that a non-U.S. entity operates in a manner equivalent to a U.S. 501(c)(3) public charity, expenditure responsibility is not required. This process, known as equivalency determination, involves reviewing the foreign organization’s purposes, activities, and financial accountability to ensure they align with the standards of a U.S. public charity.

5. Grants to U.S. or Non-U.S. Government Agencies: Grants made to U.S. government entities (federal, state, or local) and recognized foreign governments are exempt. These government agencies are typically subject to their own rigorous public accountability and auditing standards, which reduces the need for private foundations to exercise additional oversight.

When Expenditure Responsibility Is Required

Private foundations must exercise a high degree of diligence using expenditure responsibility in several specific situations where the grantee does not automatically fall under the umbrella of public charity status. These scenarios include:

1. Grants to Non-Tax-Exempt Entities: This typically includes for-profit companies and commercial businesses. Since these entities are not primarily engaged in charitable activities and do not have the tax-exempt status of a public charity, foundations must ensure that the grants are used exclusively for charitable purposes and not for private benefit or commercial purposes.

2. Grants to Other Private Foundations: While some private foundations, like exempt operating foundations, might be exempt due to their direct charitable activities, others require careful oversight to ensure grant funds are properly used for charitable purposes.

3. Grants to Foreign Charitable Organizations: This category requires particular attention. When dealing with foreign charitable organizations that lack an IRS classification as equivalents to 501(c)(3) public charities, foundations must exercise expenditure responsibility or engage in an equivalency determination process. While the primary focus of this article is to explore the essentials of expenditure responsibility, it is also pertinent to provide an overview of the equivalency determination process. The equivalency determination process necessitates a comprehensive evaluation of the foreign organization's operational framework, financial governance, and strategic objectives. Foundations undertaking this process must critically assess whether the foreign entity's operations and governance structures align with the criteria established for U.S. public charities. This evaluation often encompasses a detailed analysis of the organization's mission statements, sources of funding, governance mechanisms, and program initiatives to ensure they are dedicated to charitable purposes as defined by U.S. standards.

4. Grants to Organizations Awaiting IRS Determination: Organizations that have applied for but have not yet received their 501(c)(3) determination letter from the IRS fall into this category. During this interim period, the foundation must exercise expenditure responsibility to ensure the grant is used for exempt purposes.

5. Grants to Non-501(c)(3) Nonprofit Entities: This broad category includes a variety of organizations such as those engaged in testing for public safety, social welfare organizations, labor unions, agricultural groups, trade and professional associations, business chambers of commerce, social clubs, and certain types of supporting organizations. Since these entities have different tax-exempt statuses or purposes, they require more stringent monitoring and oversight.

Maintaining Expenditure Responsibility

Private foundations must adhere to stringent procedures to maintain expenditure responsibility. This ensures that all grants are utilized for their intended charitable purposes in compliance with U.S. tax laws. The key steps in this process are:

1. Conduct a Thorough Pre-Grant Inquiry: This involves an in-depth investigation of the potential grantee. The inquiry assesses whether the proposed activity is charitable and if the grantee has the capability to successfully execute it. Factors to consider include the grantee's identity, historical performance, managerial competence, activities, and overall operations. The depth of this investigation varies, depending on the grant's size and purpose, the payment timeline, and any prior interactions with the grantee. This process aims to assure that the grantee will utilize the funds appropriately, with the scope of the inquiry adjusted based on the specific circumstances of the grant.

2. Execute a Detailed Written Agreement with the Grantee: This agreement outlines the grant's terms, emphasizing that the funds must be used for designated charitable purposes. Key elements of the agreement include:

• Specification of the charitable objectives, ensuring clarity on the grant's purpose.

• Prohibition of funds usage for lobbying, political campaigns, voter registration drives, grants to individuals, or any non-exempt activities.

• Requirement for the grantee to return unused funds.

• Inclusion of a detailed project budget, enhancing transparency and accountability.

• Obligation for the grantee to submit detailed annual reports and maintain accurate records, which should be accessible to the foundation for oversight and compliance.

3. Acquire Periodic Grantee Reports: Foundations should obtain regular updates on the grant's status, detailing expenditures and progress towards objectives. These reports are typically required annually until the grant is fully expended or terminated. The final report should provide a comprehensive overview of all expenditures. Although it is not standard for foundations to independently verify the accuracy or reliability of these reports—unless there are doubts about their credibility—it is essential for the foundation to ascertain that these reports are indeed received. Moreover, it is important to ensure that the reports meet the stipulations outlined in the grant agreement. As a measure of good governance, foundations should insist on the submission of timely and detailed reports as a key condition for the continuation or approval of future funding.

4. Annual Disclosure to the IRS: Foundations must report each active expenditure responsibility grant to the IRS using Form 990-PF. This report must include the grantee's name and address, the date and amount of the grant, the grant's purpose, the grantee's expenditures thus far, any known diversion of funds from the grant's purposes, the dates of reports received from the grantee, and, if applicable, the date and results of any verification of the grantee's reports. If the grantee's report contains all necessary information, it can be included as the foundation's IRS submission. Foundations should regularly inform their tax preparers about new and outstanding expenditure responsibility grants to ensure accurate IRS reporting.

5. Investigate Diversion of Funds: Investigating any diversions of funds is a critical responsibility for a foundation. When funds are used for purposes other than those stipulated in the grant agreement, the foundation faces the risk of these grants being categorized as taxable expenditures. Prompt action is crucial in cases where a diversion of funds is discovered or suspected. To prevent a grant from being classified as a taxable expenditure, the foundation should undertake comprehensive recovery and assurance measures. This may involve legal steps to recover the diverted funds or to ensure their proper usage. Ensuring the appropriate application of any remaining grant funds is also vital. This typically requires closer monitoring of the grantee’s activities and increased oversight in general. In addition to these measures, the foundation should consider withholding further payments until it receives firm assurances from the grantee that future diversions will not occur. Imposing stringent precautions to prevent further diversions becomes even more critical if the grantee has a history of misusing funds.


In conclusion, expenditure responsibility is an essential component of regulatory compliance for private foundations, crucial for ensuring adherence to U.S. tax laws and confirming that grants are utilized strictly for charitable purposes. Expenditure responsibility is most relevant when engaging with entities that are not recognized as public charities by the IRS, a common scenario in dealings with many foreign organizations. To execute expenditure responsibility, foundations are required to demonstrate due diligence, which encompasses conducting comprehensive pre-grant inquiries, establishing detailed written agreements, consistently obtaining grantee reports, and performing annual disclosures to the IRS. Such vigilance is imperative in preventing grants from being classified as taxable expenditures, thereby avoiding potential excise tax penalties for the foundation and its managers. By adhering to these stringent procedures, private foundations not only safeguard their charitable objectives but also ensure consistent compliance with IRS regulations.

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