Treasury Considers Abandoning Equivalency Affidavit for U.S. Foundation Grants to Foreign NGOs

On September 24, 2012, the U.S. Treasury Department published a notice requesting comments on whether it should no longer allow U.S. private foundations to make a good faith determination of a foreign grantee's public charity status based on the grantee's affidavit.

Although the IRS is not eliminating equivalency affidavits at this time, its request for comments on that idea accompanied an announcement of proposed regulations intended to make it easier and less expensive for foundations to rely on the written advice of tax professionals rather than on grantee affidavits. Under current regulations, such written advice may be provided only by the foundation's or the grantee's attorney. The proposed regulations would allow foundations to rely on the written advice of a certified public accountant, an "enrolled agent," or the foundation's (but not the grantee's) attorney. Private foundations are entitled to rely on the proposed regulations for grants made on or after September 24, 2012.

A private foundation making a grant to a foreign non-governmental organization generally must either make a good faith determination (known as an "equivalency determination") that the grantee is the equivalent of a U.S. public charity, or follow a procedure known as "exercising expenditure responsibility." Under current law, an equivalency determination must be based on an affidavit of the grantee or on the written advice of an attorney. The notice published September 24 states, "The Treasury Department and the IRS believe that expanding the class of practitioners on whose written advice a private foundation may base a good faith determination will decrease the cost of seeking professional advice regarding these determinations, enabling foundations to engage in international philanthropy in a more cost-effective manner."

The proposed regulations and the request for comments come as the IRS is being asked to support another concept intended to make equivalency determinations more cost-effective—the "equivalency determination information repository" or EDIR. EDIRs would collect and evaluate equivalency information from non-U.S. charitable organizations and share their determinations with participating U.S. foundations. A Council on Foundations analysis of the proposed regulation says that it removes a key obstacle to the creation of an EDIR.