There is not a non-criminal statutory penalty for the charity like the penalties described for the DAF advisor and DAF sponsor. But the IRS generally has the power to hold you liable for aiding and abetting another person's evasion of tax liability, and can fine you, revoke your tax exemption, and pursue criminal prosecution for those things. In this case, you would have to knowingly accept the $90 from the donor, and the remainder from the DAF, and nevertheless provide benefits. I see this as extremely shaky ground from which to mount a defense.
Thank you,
Isaac Shalev
Data Strategy Expert
Sage70, Inc.
(917) 859-0151
isaac@sage70.com
Schedule a 30-minute consultation now:
Original Message:
Sent: 5/22/2025 11:39:00 AM
From: John Taylor
Subject: RE: DAF Bifurcation - is IRS Notice 2017-23 optional?
As previously pointed out, the bifurcation issue is not a proposed regulation. It is a reinforcement of existing rules.
You will need to ask Counsel what the implications are to your organization. Clearly, the DAF has the most to lose. If Counsel tells you it is their problem and not yours I would clearly describe in a letter or receipt the entire nature of the transaction and its possible IRS implications.
John
John Taylor Principal, John H. Taylor Consulting, LLC 919.816.5903 Big ideas; small keyboard
Original Message:
Sent: 5/22/2025 11:26:00 AM
From: Ashley Ojeda
Subject: RE: DAF Bifurcation - is IRS Notice 2017-23 optional?
One follow up question. What are the repercussions to my institution if we accept grants from a DAF sponsor who doesn't adhere to the proposed IRS regulation? I'm sure the CSU benefitting from these grants will be taking issue with my "no bifurcation" stance when there's a DAF who is okay with bifurcation.
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Ashley Ojeda
University of Texas at Austin
ashley.ojeda@austin.utexas.edu
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Original Message:
Sent: 05-21-2025 01:10 PM
From: Ashley Ojeda
Subject: DAF Bifurcation - is IRS Notice 2017-23 optional?
This is great, thank you John and Isaac for the sanity check!
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Ashley Ojeda
University of Texas at Austin
ashley.ojeda@austin.utexas.edu
Original Message:
Sent: 05-21-2025 12:37 PM
From: John Taylor
Subject: DAF Bifurcation - is IRS Notice 2017-23 optional?
You rock, Isaac. I was thinking only about the pledge payment provision of this notice. I had forgotten this mention! You additional observation that this notice does not change the IRS stance on bifurcation is key, too.
John H. Taylor, PrincipalJohn H. Taylor Consulting, LLC
2604 Sevier Street
Durham, NC 27705
919.816.5903 (cell/text)
Serving the Advancement Community Since 1987
Original Message:
Sent: 5/21/2025 1:08:00 PM
From: Isaac Shalev
Subject: RE: DAF Bifurcation - is IRS Notice 2017-23 optional?
Ashley, the guidance in 2017-73 about bifurcation in Section 1 is a proposed rule. Per the notice " The Treasury Department and the IRS currently agree that the relief of the Donor/Advisor's obligation to pay the full price of a ticket to a charity-sponsored event can be considered a direct benefit to the Donor/Advisor that is more than incidental. Therefore, proposed regulations under § 4967 would, if finalized, provide, that a distribution from a DAF pursuant to the advice of a Donor/Advisor that subsidizes the Donor/Advisor's attendance or participation in a charity-sponsored event confers on the Donor/Advisor a more than incidental benefit under § 4967. "
These notices are technically Notices of Proposed Rulemaking (NPRM). There are
some specific and technical rules about relying on them, but the short version is that IRS examiners follow the proposed regulation, unless it is in conflict with an existing regulation. In this case, there is no conflicting regulation, this notice is simply a clarification that getting tickets or whatever is a more than incidental benefit. There was no rule that existed that said otherwise.
In my opinion (not anyone's lawyer) this clarification is not optional, and an IRS examiner would have issues with the position the DAF sponsor has taken.
Thank you,
Isaac Shalev
Data Strategy Expert
Sage70, Inc.
(917) 859-0151
isaac@sage70.com
Schedule a 30-minute consultation now:
Original Message:
Sent: 5/21/2025 11:36:00 AM
From: Ashley Ojeda
Subject: DAF Bifurcation - is IRS Notice 2017-23 optional?
Hi All,
We work with a reputable community DAF who contacted us with a grant verification for a membership fee. The verification question from grant administrators is usually worded as "are there any more than incidental benefits associated with this membership?" then they have the donor waive the benefits or use a personal payment for the membership. In this case, the the grant administrator asked us for the FMV of a membership, which I thought was odd. I responded with the FMV of the membership ($90), but added "Doesn't the donor need to waive all 'more than incidental benefits' to use their DAF for membership fees?"
Here's their response:
"Our policy is to continue to offer the option to pay the charitable portion of a grant, and for the donor to separately cover the costs of any benefits they may receive until an official regulation is issued from the IRS. We contact the donor to confirm whether they are, or plan to, accept the benefits and if so, we deduct the non-charitable portion from the grant amount."
We looked at their website and they don't have any forward-facing mention of their policies regarding the use of DAFs, like most other DAF companies do. Is IRS Notice 2017-73 optional? Has anyone else encountered this? Does anyone have any advice?
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Ashley Ojeda
University of Texas at Austin
ashley.ojeda@austin.utexas.edu
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