Last month, Congress retroactively repealed the provision of the 2017 Tax
Act that imposed unrelated business income tax on nonprofits that provided
qualified transportation fringe benefits to employees. The Taxpayer
Certainty and Disaster Tax Relief Act of 2019 (the 2019 act) was signed
into law on Dec. 20, 2019, as part of the Further Consolidated
Appropriations Act, 2020, which was enacted to address disaster relief and
provide technical corrections and amendments needed to clarify other recent
tax law changes. In addition to the repeal of Internal Revenue Code section
512(a)(7) (the parking tax), the 2019 act modified section 4940 to collapse
the two-tiered rate structure imposed on net investment income of private
foundations into a flat 1.39 percent rate.
Parking Tax Repeal
The 2017 Tax Act amended Internal Revenue Code section 512(a) to require
tax-exempt organizations to increase their unrelated business taxable
income (UBTI) by the amount paid or incurred for qualified transportation
fringe benefits provided to employees. These fringe benefits include mass
transit passes and employee parking arrangements. As a result, many exempt
organizations had an obligation to file a Form 990-T for the first time —
including organizations that do not engage in any actual unrelated trade or
business activity and organizations.
With its repeal, nonprofits that reported qualified transportation fringes
on IRS Form 990-T as UBTI and paid tax attributable to such income between
Jan. 1, 2018, and Dec. 31, 2019, should note that they generally have three
years from the date the return was filed to claim a refund. Hopefully, the
IRS will “issue guidance on the appropriate steps organizations should take
in the refund process so that they can receive the money they are owed
without delay and further hardship,” as requested by U.S. Reps. Richard
Neal, D-MA, and John Lewis, D-GA, in a letter sent to the IRS on Jan. 8,
2020. Further, nonprofits should ensure that any upcoming tax return
filings or estimated tax payments calculations do not include qualified
transportation fringe benefits as UBTI.
Net Investment Income Tax Simplification
Despite being exempt from federal income tax under Internal Revenue Code
section 501(a) as organizations described in Internal Revenue Code section
501(c)(3), private foundations are subject to an excise tax on their net
investment income under the special tax rules that apply to private
foundations. Generally, net investment income is the excess of gross
investment income, including interest, dividends, rents and royalties plus
capital gain net income, over allowable deductions. These allowable
deductions are expenses incurred in the production or collection of gross
investment income or management of property held for production of such
income. Before passage of the 2019 act, the tax was 2 percent of the
foundation’s net investment income with the possibility that the tax may be
reduced to 1 percent in certain circumstances.
Over the years, various bills have been introduced in Congress to simplify
the private foundation tax on net investment income by replacing the
current two-tier tax with a single rate. For example, in 2014, U.S. Rep.
Dave Camp, R-MI, chairman of the U.S. House of Representatives’ Ways and
Means Committee, released a discussion draft of a Tax Reform Act of 2014
that included replacing the tax with a single, 1 percent tax rate. The
two-tiered rate was established to encourage private foundations to
increase their qualified distributions to qualify for the lower 1 percent
tax rate, but it also increased the burden and complexity of tax
The 2019 act modified Internal Revenue Code section 4940 to collapse the
two rates into a flat rate of 1.39 percent effective for tax years that
begin after Dec. 20, 2019. The new 1.39 percent tax rate selected was deemed to be “revenue neutral” to the federal government based on the amount of taxes paid overall by private foundations in the past. For private foundations that did not
qualify for the 1 percent rate, this change results in tax savings.
However, for those private foundations that met the requirement to pay the
lower 1 percent rate, they will see a tax increase from this change.
Overall, private foundations should benefit from reduced complexity and
burden of calculating the net investment income tax and predicting
estimated tax payment obligations.
In addition to the repeal of the parking tax and the modification of the
net investment income tax rate, the 2019 act also included a temporary
suspension of the charitable deduction income percentage limitations for
individuals and corporations for qualified contributions to support
disaster relief made between Jan. 1, 2018, and Feb. 18, 2020.