On December 20, 2019, President Trump signed into law changes to the private foundation excise tax on net investment income under Section 4940 of the Internal Revenue Code.[1]

For purposes of Section 4940, net investment income is the excess of gross income from interest, dividends, rents and royalties (“gross investment income”), plus capital gain net income, over expenses paid or incurred in the production or collection of gross investment income or for the management of property held for the production of gross investment income.[2]  Prior to the new legislation, Section 4940 imposed an excise tax of 2% on the net investment income of most domestic tax-exempt private foundations.[3]  This tax rate could be reduced to 1% if a foundation made certain charitable distributions during the tax year equal to or greater than the sum of (a) the assets of the foundation for the tax year multiplied by its average percentage payout for the five tax years preceding that year, plus (b) 1% of the foundation’s net investment income for the tax year.  In order to qualify for the 1% rate, the foundation also could not be liable for any taxes under Section 4942 (taxes on failure to distribute income) for any of the previous five tax years.

The new legislation streamlines the two-tiered tax rate regime by eliminating the 1% rate and its requirements and instead imposing a flat 1.39% rate on the net investment income of private foundations.  The new 1.39% rate is effective for tax years beginning after December 20, 2019, and, therefore, will affect private foundations with calendar-based tax years in 2020.  It is expected that the 2020 Form 990-PF will be revised to reflect these changes.

Private foundations are no longer able to qualify for a reduced 1% rate on their net investment income under the amended Section 4940, thus, the tax rate incentive to increase qualified distributions has been eliminated.  However, these changes reduce the complexity and administrative burden of calculating the tax under a dual-rate system.  Private foundations that were previously not able to meet the requirements for the 1% rate will benefit from both the lower tax rate and the simplified tax compliance.

[1] See Division Q of H.R. 1865, the “Further Consolidated Appropriations Act, 2020.”

[2] I.R.C. § 4940(c).

[3] Foreign private foundations are subject to a 4% excise tax on gross investment income from U.S. sources.  I.R.C. § 4948(a).  H.R. 1865 did not affect the excise tax on foreign private foundations.

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Photo of Amanda H. Nussbaum Amanda H. Nussbaum

Amanda H. Nussbaum is the chair of the Firm’s Tax Department as well as a member of the Private Funds Group. Her practice concentrates on planning for and the structuring of domestic and international private investment funds, including venture capital, buyout, real estate…

Amanda H. Nussbaum is the chair of the Firm’s Tax Department as well as a member of the Private Funds Group. Her practice concentrates on planning for and the structuring of domestic and international private investment funds, including venture capital, buyout, real estate and hedge funds, as well as advising those funds on investment activities and operational issues. She also represents many types of investors, including tax-exempt and non-U.S. investors, with their investments in private investment funds. Business partners through our clients’ biggest challenges, Amanda is a part of the Firm’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team helping to shape the guidance and next steps for clients impacted by the pandemic.

Amanda has significant experience structuring taxable and tax-free mergers and acquisitions, real estate transactions and stock and debt offerings. She also counsels both sports teams and sports leagues with a broad range of tax issues.

In addition, Amanda advises not-for-profit clients on matters such as applying for and maintaining exemption from federal income tax, minimizing unrelated business taxable income, structuring joint ventures and partnerships with taxable entities and using exempt and for-profit subsidiaries.

Amanda has co-authored with Howard Lefkowitz and Steven Devaney the New York Limited Liability Company Forms and Practice Manual, which is published by Data Trace Publishing Co.

Photo of Brianna Reed Brianna Reed

Brianna Reed is a senior counsel in the firm’s Tax Department and a member of the Private Funds Group.

Her practice focuses on tax planning for domestic and international private investment funds, including venture capital, hedge, secondary, funds-of-funds, and other investment partnerships. Brianna…

Brianna Reed is a senior counsel in the firm’s Tax Department and a member of the Private Funds Group.

Her practice focuses on tax planning for domestic and international private investment funds, including venture capital, hedge, secondary, funds-of-funds, and other investment partnerships. Brianna counsels sponsors on all types of fund-related transactions and operations, including:

  • fund formation and fund-raising;
  • fund structuring and internal organization;
  • carried interest and other compensation arrangements;
  • buy-side secondary transactions and sell-side secondary transactions;
  • fund restructurings; and
  • portfolio company investments.

She also counsels investors regarding various tax considerations as they invest  in private funds and co-investment vehicles. These clients include:

  • institutional investors;
  • non-U.S. entities;
  • tax-exempt organizations;
  • U.S. persons making investments outside of the U.S.; and
  • regulated investment companies.

Brianna’s pro bono work involves advising non-profit organizations on applying for and maintaining federal income tax exemption, and advocating on behalf of victims of domestic violence and abuse. She received Proskauer’s Golden Gavel Award for excellence in pro bono work in 2019.

Brianna serves on the Steering Committee of Proskauer’s Women’s Alliance. She was also one of a few women selected to be a Protégée for Proskauer’s Women Sponsorship Program, an initiative for high performing midlevel lawyers that champions emerging leaders.

Outside of Proskauer, Brianna is a member of the Taxation Law Section Council of the Massachusetts Bar Association, which educates lawyers in areas of tax law and provides leadership in state tax law changes. She was selected as a fellow for the Massachusetts Bar Association’s Leadership Academy Class of 2021-2022. Brianna is also active in volunteer activities involving educational initiatives.

Prior to joining Proskauer, Brianna was an associate at a premier law firm, where she maintained a broad tax practice, including advising on tax aspects of mergers and acquisitions and other complex business transactions. She also previously worked in the tax department of a major U.S. defense contractor.