CRT & Not-for-profits OUCH! Why Tax?

The CRT is not formed with the intention of having to pay tax! Why is there tax due?

The tax laws prohibit any tax-exempt entity including the CRT from carrying on a trade or business that is not related to its tax exempt functions.

Investments can create this UNRELATED BUSINESS INCOME. An example is a partnership investment.

Even though an organization is recognized as tax exempt, it still may be liable for tax on its unrelated business income. Unrelated business income is income from a trade or business, regularly carried on, that is not substantially related to the performance by the organization of its exempt purpose or function except that the organization needs the profits derived from this activity. An exempt organization that has $1,000 or more gross income from an unrelated business must file Form 990-T, Exempt Organization Business Income Tax Return.

The unrelated business income tax (UBIT) applies to all organizations exempt from tax under section 501(a) except certain U.S. instrumentalities. State and municipal colleges and universities are also subject to the UBIT.

All organizations subject to UBIT, except trusts, are taxable at corporate rates on that income. All exempt trusts that are subject to these provisions, and that, if not exempt, would be taxable as trusts, are taxable at trust rates on unrelated business taxable income. However, an exempt trust may not claim the deduction for a personal exemption that is normally allowed to a trust.

An activity will be considered an unrelated business (and subject to UBIT) if it meets the following three requirements: (1) it is a trade or business, (2) it is regularly carried on, and (3) it is not substantially related to the furtherance of the exempt purpose of the organization. However, there are a number of exclusions and modifications to this general rule.

The term "trade or business" generally includes any activity carried on for the production of income from selling goods or performing services. It is not limited to integrated aggregates of assets, activities, and goodwill that comprise businesses for the purposes of certain other provisions of the Internal Revenue Code. Activities of producing or distributing goods or performing services from which gross income is derived do not lose their identity as trades or businesses merely because they are carried on within a larger framework of other activities that may, or may not, be related to the exempt purposes of the organization.

Business activities of an exempt organization ordinarily will be considered to be "regularly carried on" if they show a frequency and continuity, and are pursued in a manner similar to comparable commercial activities of nonexempt organizations.

To determine whether a business activity is or is not "substantially related" requires an examination of the relationship between the business activities that generate the particular income in question and the accomplishment of the organization's exempt purpose. Trade or business is related to exempt purposes, in the statutory sense, only when the conduct of the business activities has causal relationship to the achievement of exempt purposes (other than through the production of income). The causal relationship must be substantial. The activities that generate the income must contribute importantly to the accomplishment of the organization's exempt purposes to be substantially related.

The Code contains a number of modifications, exclusions, and exceptions to unrelated business income. For example, dividends, interest, certain other investment income, royalties, certain rental income, certain income from research activities, and gains or losses from the disposition of property are excluded when computing unrelated business income. In addition, the following activities are also specifically excluded from the definition of unrelated trade or business:

Volunteer Labor - Any trade or business is excluded in which substantially all the work is performed for the organization without compensation. Some fund-raising activities, such as volunteer operated bake sales, may meet this exception.
Convenience of Members - Any trade or business is excluded that is carried on by an organization described in § 501(c)(3) or by a governmental college or university primarily for the convenience of its members, students, patients, officers, or employees. A typical example of this would be a school cafeteria.
Selling Donated Merchandise - Any trade or business is excluded that consists of selling merchandise, substantially all of which the organization received as gifts or contributions. Many thrift shop operations run by exempt organizations would meet this exception.

You can link to the IRS Site as follows:

see Unrelated Business Income Tax.

download Publication 598,

download UBIT: Current Developments