Creating a For-Profit Subsidiary: 7 Things to Knowby
While there can be many benefits to creating a for-profit subsidiary, such as providing a shield against liability, there are several common issues that nonprofits must consider during the process. Aaron Fox, a nonprofit tax services expert at Marcum LLP, explains what these issues are and how to minimize risk.
Creating a for-profit subsidiary was once considered unusual and niche, but over the past few decades it has become more common and even standard for tax-exempt organizations. This arrangement emerged as a solution to the various challenges tax-exempt organizations often face, including but not limited to: managing an unrelated business activity, separating activities that stray from the original purpose of the exempt parent and protecting the organization’s assets from legal liability.
By far the most common reason nonprofits create a for-profit subsidiary is to separate an unrelated business activity from the parent organization, thereby protecting it from violating the primary purpose test and, to a lesser extent, the commensurate test. The primary purpose test ensures that the nonprofit isn’t organized or operated for the primary purpose of carrying on an unrelated trade or business. In other words, it must be primarily focused on fulfilling its exempt mission.
What constitutes “primary” is determined by a few things, including the size and extent of the unrelated business activity. Ultimately, the resources devoted to an unrelated trade or business must be "insubstantial" — though insubstantial is not defined by any fixed percentage. This uncertainty could be what motivates some exempt organization managers and boards to gravitate toward the for-profit subsidiary solution.
Forming and operating a for-profit subsidiary requires planning and proper guidance from legal and accounting professionals. Below are some of the most common issues to address during this process. (Depending on the underlying reason for creating the new entity, your considerations may vary.)
Initially, the parent will need to decide how ownership of the new entity will be structured. The entity can be either wholly owned, majority owned or minority owned. For simplicity’s sake, we're focusing only on wholly-owned and majority-owned entities in this article because most parent organizations want to maintain control over the new subsidiary.
There are three primary methods for establishing control of a newly formed corporation. First, the parent could control the subsidiary by way of board overlap or by stipulating in the governing documents that the parent has the ability to appoint the board. Second, the subsidiary could be a membership organization with the parent appointed as the sole member, granting it the ability to control composition of the board at will. Finally, the subsidiary could issue stock, with the majority or all of it retained by the parent.
2. Capitalization and Transfers
Once the entity has been legally formed, the parent may consider infusing the new subsidiary with funds to pay vendors and staff and to generally operate as a for-profit corporation. IRS rulings indicate that exempt parents may form, capitalize and operate an affiliate corporation if it furthers the charitable mission. There are a few ways the parent organization can accomplish this. The first is to loan the money to the subsidiary using terms that are at arm’s length (meaning terms that are generally offered to the public). This requires a written document that governs the loan and stipulates the interest rate charged and the repayment schedule. The interest paid by the subsidiary is deductible, but typically interest, rent, royalty, annuity and similar payments create taxable income to the parent when paid by its subsidiary.
There are a few exceptions to this rule. One exception covers activities conducted by the subsidiary that are also conducted by the parent and are related to the parent’s mission. In that case, payments are excluded from taxation. The parent could also argue that the subsidiary is a “loss corporation,” provided it can show the subsidiary is producing losses consistently and therefore reaps no tax benefit in deducting interest payments.
The other option to capitalize a subsidiary is to simply make a contribution or grant to the organization. However, in most cases the subsidiary will be conducting unrelated business activities; therefore, such a grant by the parent would not be compatible with its exempt purpose. The most prudent capitalization may involve some combination of the two methods above.
The subsidiary must establish itself as a separate legal and tax entity from the parent. This is because the IRS scrutinizes parent-subsidiary relationships that appear to lack bona fide intent to have real and substantial business functions.
Here's an example. In a ruling published in 1986, the IRS examined a scientific research organization and its subsidiary. The subsidiary developed and manufactured products that were derived from technology generated from the parent’s research. The activities of the subsidiary were ultimately attributed to the parent because the parent maintained a controlling interest in the subsidiary, there were overlapping employees between the two entities and they shared facilities and equipment.
More recently, the IRS has moved away from taking such aggressive stances. As long as there is no “clear and convincing” evidence that shows the subsidiary is acting as an agent or integral part of the tax-exempt parent, the IRS has ruled that the subsidiary’s activities will not be attributed to the parent. However, in situations where the parent controls the affairs of the subsidiary so closely, like when the parent is directly involved in the day-to-day management of the subsidiary, the subsidiary may not be regarded as a separate entity and, therefore, would be disregarded for tax purposes.
There is no single factor that determines whether attribution should occur. Rather, the IRS weighs multiple factors in making this determination. These factors include:
Whether the officers, trustees or employees of the tax-exempt parent constitute a majority of the for-profit subsidiary’s board of directors, as this level of control demonstrates that the subsidiary is acting as an agent or integral part of the parent.
Whether the boards between the two organizations are identical.
Whether the activities between the parent and subsidiary are conducted at arm’s length.
Whether the parent is involved in the day-to-day management of the subsidiary, for which the IRS examines the similarity between the activities, locations and identities of the entities.
The use of for-profit subsidiaries by exempt organizations has become commonplace, and attribution is mostly reserved for cases of extreme abuse. However, tax-exempt parents should consider these factors when determining the structure and operations of the subsidiary to minimize the potential for attribution in the future, when the IRS may have more incentive to examine the issue.
4. Exempt Status
Exempt organization parents have the burden of demonstrating that they plan to use the substantial assets of their subsidiaries to further their mission. In some cases, this means making dividend payments to the parent; in other cases, the IRS has suggested that a subsidiary’s asset or stock be sold to generate proceeds to fund program activity at the parent. Ultimately, the parent should not use its exempt assets, which could have been sourced from charitable donations or membership dues, to expand the commercial business of the subsidiary.
Of greater concern to the IRS is the potential for founders to use closely held subsidiaries for their personal enrichment. Of particular concern are instances in which nonprofit founders create a subsidiary and benefit unreasonably from its accumulated gains. This sort of abuse triggers intermediate sanctions under §4958 and can jeopardize the exemption of the nonprofit parent. Factors that indicate potential abuse include de minimis levels of exempt activities by the parent, loans by the subsidiary to closely held affiliates or disqualified persons (with or without formal repayment arrangements) and, in general, the lack of intent to use any of the earnings of the subsidiary for exempt purposes of the parent.
A 501(c)(3) exempt parent should be aware that the structure of a tax-exempt parent and taxable subsidiary may create issues with regards to employee compensation. A 501(c)(3) organization is subject to limitations regarding how it can compensate its employees, an area that is governed by private inurement, private benefit and/or excess benefit transaction doctrines.
In general, compensation must be reasonable and cannot exceed fair value of the services rendered to the payor. Any compensation the subsidiary pays to officers, directors, trustees or key employees of the parent should be reported on the annual information return of the parent. This is because wholly- or majority-owned subsidiaries should be listed as a related entity. Although stock options are generally scrutinized more due to the potential for unreasonable levels of compensation, stock options to employees of the taxable subsidiary are an option, as well as providing an employee stock-ownership plan. Ownership of stock by anyone other than the exempt parent does, however, increase risk in a number of areas and should be carefully considered.
6. Minority Ownership
If the subsidiary is formed as a stock-based corporation, it will have the opportunity to issue stock and ownership to third parties. This can be helpful in raising funds for the subsidiary or in attracting the skills and talent necessary to successfully run the organization. Generally, this sort of stock issuance is permissible and would not jeopardize the exempt status of the parent. That said, an exempt parent should know that the inherent risk involved with third-party stockholders is that the tax-exempt parent can unduly enrich private third-parties using charitable assets. This activity can jeopardize the exempt status of the parent and would be detrimental to the overall activities of the subsidiary.
7. Cost Sharing
Exempt parents will be able to share resources (via a cost-sharing or management services arrangement) with the taxable subsidiary without additional risk. This could include shared staff, offices, facilities, equipment and more. Any 501(c)(3) parent must ensure that it is reimbursed for full fair market value on any goods or services shared with the subsidiary. This must be done on an actual use basis rather than by allocation. Any receivable from the subsidiary should be paid promptly, preferably with no amount outstanding as of the end of the tax year.
The creation of a for-profit subsidiary is commonly prescribed for nonprofits that have the potential to earn large sums of unrelated business income. The corporate subsidiary can also provide a shield against liability for management and the exempt parent. However, to minimize risk, nonprofits must keep the above considerations top of mind.
This article was originally published on the Marcum LLP website on August 23, 2021.