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Charitable Gifts of Noncash Assets Charitable Gifts of Noncash Assets 2nd Edition Bryan Clontz, MS, MSFS, Ph.D., CFP®, CLU®, ChFC®, CAP®, RICP®, AEP, CBP Edited by Ryan Raffin, JD Copyright © 2018 by The American College Press All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quota- tions embodied in critical reviews and certain other noncommercial uses permitted by copyright law. For permission requests, write to the publisher the address below. ISBN-10: 1-58293-256-5 ISBN-13: 978-1-58293-256-9 The American College Press 270 S. Bryn Mawr Avenue Bryn Mawr, PA 19010 http://www.theamericancollege.edu Printed in the United States of America With Gratitude to Our Funders Commissioned by The Chartered Advisor in Philanthropy program at The American College of Financial Services, this book was generously funded by Leon L. Levy, CLU, RHU. Previously, Leon had funded Bryan Clontz, MS, MSFS, Ph.D., CFP®, CLU®, ChFC®, CAP®, RICP®, AEP, CBP as the inau- gural Leon L. Levy Fellow in Philanthropy at The American College. Leon’s purpose has been to advance the field of philanthropy by encouraging collaboration between financial, tax, and legal advisors, and nonprofit professionals. In that way, Leon is advancing the mission of the Chartered Advisor in Philanthropy program, funded by Sallie B. and William B. Wallace, through The American College of Financial Services. Thank you, Leon, Bill, and Sallie! While this book covers technical financial, tax and legal aspects of noncash donations, it is not intended to provide any advice specifically to donors. As with any project of this complexity, errors, misinterpretations and dated or obsolete information are not only possible, they are nearly guaran- teed. As always, seek additional resources and counsel when exploring noncash planning solutions for your donors and clients. Table of Contents Table of Contents Charitable Gifts of Noncash Assets With Gratitude to Our Funders Table of Contents . i Preface and Users' Guide . v Contributors . xiii Noncash Opportunities, Aggregate Market and Property Types . xxxi Donor Questions | Quick Take-Aways . xlvii Donor Questions | Identifying Charitable Passions and Noncash Giving Opportunities . xlix Donor Questions | Additional Resources . lxiii Key Noncash Gift Process Considerations . lxv Key Terms and Concepts . lxix General Regulations and Information . lxxvii Real Estate . 1 .1 Real Estate Quick Take-Aways . 1 .2 Real Estate Intermediate . 1 .5 Real Estate Advanced . 1 .11 Real Estate Additional Resources . 1 .29 C Corporations . 2 .1 C Corporations Quick Take-Aways . 2 .2 C Corporations Intermediate . 2 .5 C Corporations Advanced . 2 .9 C Corporations Additional Resources . 2 .22 S Corporations . 3 .1 S Corporations Quick Take-Aways . 3 .2 S Corporations Intermediate . 3 .5 S Corporations Advanced . 3 .10 S Corporations Additional Resources . 3 .25 Pass-Through Entities . 4 .1 Pass-Through Entities Quick Take-Aways . 4 .2 Pass-Through Entities Intermediate . 4 .5 Pass-Through Entities Advanced . .4 .11 Pass-Through Entities Additional Resources . 4 .23 i Charitable Gifts of Noncash Assets Agricultural Assets . 5 .1 Agricultural Assets Quick Take-Aways . 5 .2 Agricultural Assets Intermediate . 5 .4 Agricultural Assets Advanced . 5 .8 Agricultural Assets Additional Resources . 5 .16 Life Insurance . 6 .1 Life Insurance Quick Take-Aways . 6 .2 Life Insurance Intermediate . 6 .4 Life Insurance Advanced . 6 .9 Life Insurance Additional Resources . 6 .19 Tangible Property . 7 .1 Tangible Property Quick Take-Aways . 7 .2 Tangible Property Intermediate . 7 .5 Tangible Property Advanced . 7 .10 Tangible Property Additional Resources . 7 .19 Mineral Interests . 8 .1 Mineral Interests Quick Take-Aways . 8 .2 Mineral Interests Intermediate . 8 .4 Mineral Interests Advanced . 8 .9 Mineral Interests Additional Resources . 8 .22 Vehicles . 9 .1 Vehicles Quick Take-Aways . 9 .2 Vehicles Intermediate . 9 .4 Vehicles Advanced . 9 .8 Vehicles Additional Resources . 9 .23 Virtual Currency . 10 .1 Virtual Currency Quick Take-Aways . 10 .2 Virtual Currency Intermediate . 10 .4 Virtual Currency Advanced . 10 .8 Virtual Currency Additional Resources . 10 .17 ii Table of Contents Intangible Assets . 11 .1 Intangible Assets Quick Take-Aways . 11 .2 Intangible Assets Intermediate . 11 .4 Intangible Assets Advanced . 11 .9 Intangible Assets Additional Resources . 11 .23 Life Income Assets . 12 .1 Life Income Interests Quick Take-Aways . 12 .2 Life Income Interests Intermediate . 12 .5 Life Income Interests Advanced . 12 .10 Life Income Interests Additional Resources . 12 .23 Appendix . A .1 Appendix A: Valuation, Appraisals, and Substantiation . A .2 Appendix B: Charitable Estate Settlement . A .19 Appendix B: Charitable Estate Settlement Additional Resources . A .40 Appendix C: At Least a Day Late and Perhaps Many Dollars Short . A .42 Appendix D: Unique Gift Annuity Planning Opportunities with S-Corp Stock and Real Estate A .55 iii Preface and Users' Guide Preface and Users' Guide1 By Phil Cubeta Intended Audiences This book is intended for several audiences: 1. Front line advisors: financial, tax and legal advisors who have clients whose assets go well beyond cash and public securities. 2. Nonprofit gift planners: fundraisers in major gifts, planned gifts, and principal gifts whose donors wish to give assets other than cash. 3. Technical experts: Lawyers, accountants, and back office staff at charities and financial institutions charged with determining how an asset may be used for a philanthropic purpose, or determining whether that asset should be accepted as a gift. The Scope of the Opportunity Today in gift planning we have an historic opportunity, if we can seize it through canny collabora- tion among professional advisors, national gift funds, local community foundations, single issue charities, and nonprofit gift planners. Boomer business owners (think of them as The Rotarians) are reaching an age at which they must exit the business that has been their baby and their identity. As they exit, they are very good prospects for a charitable tool or gift, both to reduce tax upon sale of their appreciated business interests, and also to transition to a new way of life, post-exit, as community leaders. These can-do people, when they exit, want to do more than take their name off the trucks and their building, and put it on a gravestone. They want to go from "success to significance," set a good example for their heirs, and as one said to me, "make my last stand.” They made their money in town, will die in town, and often want to give locally. They see giving generously, post-exit, as stepping up rather than stepping down, or stepping aside. They step up into leadership and set an example for their heirs. As the case in point below shows, there are better and worse ways to exit a business and turn to philanthropy. 1. Phil Cubeta, MSFS, CLU®, ChFC®, CAP®, The Wallace Chair in Philanthropy at the American College of Financial Services. v Charitable Gifts of Noncash Assets A Case in Point: Todd, A Day Late Todd (not his real name) came to our wealth transfer firm the day after he sold his business, a C corporation with zero basis, for $100 million. His capital gain was $100 million. Tax due was $20 million. He said, “Help me wipe out my $20 million tax bill.” We helped him some, but the truth is he came to us at least one day too late. Simplified Solution Charitable planning for noncash assets, particularly for closely held business interests and com- mercial real estate, is one of the most complex areas of the tax code. Proper planning requires a team with at least a tax attorney, a CPA, a business exit specialist, a qualified appraiser, an invest- ment advisor, and perhaps an insurance professional. To see the value of proper planning, consider how Todd might have done better. Assume he gave half his firm to charity, say, in a donor-advised fund (DAF). What would be the effects? • No capital gain on the half sold inside the DAF. • A charitable deduction up to 30 percent of adjusted gross income, with five year carry forward, subject to whatever limitations may apply under the phaseout of itemized deductions. (Be thankful CPAs are happy to do these calculations.) • Half sold outside the DAF, with the gain partly offset by the deduction for the part given to the DAF. Note the effect on assets under management (AUM). • $50 million new dollars under management in the DAF. • $50 million (minus whatever residual tax is due) outside the DAF. Note the effect on potential gifts from the DAF. • $50 million new dollars that must and will go to a charity. • A “charitable checkbook” from which the donor can recommend gifts to your organization. • Alternatively, of course, Todd might have given half the stock in his business directly to a charity. But would they have accepted it? What about the land under the business? What if the firm had been an S corporation? A Limited Partnership? What if Todd had vi Preface and Users' Guide owned antique cars, an apartment complex, timber interests, an oil and gas lease, intel- lectual property, crops in the field, livestock, or some other arcane asset that he wanted to give? How could the charity have researched such a gift? Until now, there has been no comprehensive guide. How to Use This Book to Capitalize on this Historic Opportunity Now, you, as a frontline advisor or gift planner, have a reference tool you can use to determine whether or not you have a good prospect for a gift asset. These resources should be valuable what- ever assets the client has, no matter how complex or unusual. The book is designed to support a three step process.
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