Thursday April 25, 2024

7.2.5 Jeopardy Investments

Jeopardy Investments

Permissible Foundation Investments:  An investment jeopardizes a private foundation's exempt purposes if it is overly risky.

Program-Related Investments:  A private foundation may make "program-related" investments even if the investments would otherwise be considered prohibited jeopardy investments.

Penalty for Jeopardy Investments:  If a foundation makes a jeopardy investment, the foundation is subject to a 10% excise tax on the amount invested and a foundation manager who knowingly participates in the investment is subject to a 10% excise tax on the amount of the investment (with a $10,000 cap).
The trustee of a private foundation generally has a lot of flexibility when investing a private foundation's assets. Investments are proper so long as they are permitted by the private foundation's organizational document(s) and state law and do not "jeopardize the carrying out of any of its exempt purposes." Sec. 4944.

Permissible Foundation Investments


An investment jeopardizes a private foundation's exempt purposes if it is overly risky. This risk determination is made on an investment-by-investment basis. Possible jeopardy investments that are closely scrutinized include trading securities on margin; trading in commodities futures; purchases of puts, calls, straddles and warrants; and selling short.

Program-Related Investments


A private foundation may make "program-related" investments even if the investments would otherwise be considered prohibited jeopardy investments. Reg. 53.4944-3(a)(1). A program-related investment is made to accomplish an exempt purpose of the foundation and has no significant purpose of producing income or appreciation of property. Examples of program-related investments are low-interest loans to needy students or to small businesses owned by members of economically disadvantaged groups who otherwise could not obtain loans.

Penalty for Jeopardy Investments


If a foundation makes a jeopardy investment, the foundation is subject to a 10% excise tax on the amount invested. In addition, a foundation manager who knowingly participates in a jeopardy investment is subject to a 10% excise tax on the amount of the investment (with a $10,000 cap). If the private foundation does not subsequently remove the investment from jeopardy, an additional 25% excise tax on the amount invested is imposed on the foundation. Any foundation manager who does not sell the investment is subject to a 10% excise tax on the amount of the investment (with a $20,000 cap).

Case Studies on Jeopardy Investments

Lucky Lucy Lindstrom's Unitrust :   Lucy Lindstrom finished college and headed west. She started as a financial analyst with a large company in Seattle. After just four years, she became a Registered Investment Advisor and began advising clients. Lucy also managed her own investments. With her keen insight into financial markets, Lucy soon began to move from traditional stocks and bonds into futures and commodities markets. Lucy realized that "shorting" financial stocks was going to be a bonanza. She was so successful in the down market that she now only manages her own large personal portfolio.

Somewhat late in life, Lucy discovered the wonderful world of philanthropy. She volunteered at her favorite charity and has learned that giving a helping hand to someone in need is even more gratifying than making another million in the futures market. After reading in a charity's weekly enewsletter about a charitable remainder trust, Lucy called Clara Johnson, a gift planner at her favorite charity.

Lucy suggested that she would transfer $5,000,000 of securities to a 5% net plus makeup unitrust (NIMCRUT). She would serve as trustee, make the investments and the charity would be the remainder recipient. Since Lucy normally earns 18% per year on her futures and commodities investments, she feels that it would be easy to make the unitrust grow to $10,000,000 or more.

Would this plan work? May Lucy serve as trustee? Is it permissible to invest unitrust assets in the futures market?
Lucky Lucy Lindstrom's Long Shot Unitrust:   Lucy Lindstrom finished college and headed west. She started as a financial analyst with a large company in Seattle. After just four years, she became a Registered Investment Advisor and began advising clients. Lucy also managed her own investments. With her keen insight into financial markets, Lucy began to move from traditional stocks and bonds into futures and commodities markets. Lucy was so successful in these markets that she now only manages her own large personal portfolio.

Somewhat late in life, Lucy discovered the wonderful world of philanthropy. She volunteered at her favorite charity and has learned that giving a helping hand to someone in need is even more gratifying than making another million in the futures market. After reading in a charity's weekly enewsletter about a charitable remainder trust, Lucy called Clara Johnson, the gift planner for her favorite charity.

Lucy recently invested $1,000,000 in stock in a Canadian oil "wildcatter" with the name Northern Long Shot, Inc. This company has been drilling new exploratory wells in the far north. Recently, its stock rose from the $1 per share that Lucy paid to over $3 per share. Lucy thinks that the stock could move much higher next year, but she would like a charitable deduction this year. She asked Clara if she could use the stock to fund a unitrust, serve as trustee and hold the stock for another two years.

Would this plan work? May Lucy serve as trustee? Is it permissible to hold the highly speculative stock in the unitrust?
Lucky Lucy Lindstrom's Flood Recovery Plan:   Lucky Lucy Lindstrom finished college and headed west. She started as a financial analyst with a large company in Seattle. After just four years, she became a Registered Investment Advisor (RIA) and began advising clients. Lucy also managed her own investments. With her keen insight into financial markets, Lucy soon began to move from traditional stocks and bonds into futures and commodities markets. Lucy was so successful in these markets that she now only manages her own large personal portfolio. Somewhat late in life, Lucy discovered the wonderful world of philanthropy. She volunteered at her favorite charity and has learned that giving someone in need a helping hand is even more gratifying than making another million in the futures market. After reading in her favorite charity's weekly enewsletter about the need for housing in a low-income area that had been destroyed by a flood, Lucy called Clara Johnson, the charity's gift planner.

Lucy had invested $1,000,000 in stock in a renewable energy company with the name Northern Long Shot, Inc. This company designs and manufactures energy solutions for companies across the far north. Recently, the stock rose from the $1 per share that she paid to over $5 per share. Lucy thinks that this stock should be sold as soon as possible, but she would like to receive a deduction this year. In addition, she thought that the $5,000,000 could be placed in a private foundation to make loans to low-income individuals who otherwise could not afford to rebuild their homes. Since she wanted to have direct influence over the program, Lucy called her attorney Susan White to discuss a potential major gift to a private foundation for low-income housing loans.

Would this plan work? Can the private foundation receive the gift and sell the Northern Long Shot, Inc. stock? May the funds be used to offer housing loans to low-income individuals? Is there a better plan?

Private Letter Rulings

PLR 200218038 Foundation's Investment in Futures Market Not Jeopardy Investment:   Private foundation (PF) created limited partnership (LP) to benefit Supporting Organization. PF invested a substantial amount of its assets in LP. LP subsequently invested its assets in the futures and commodities markets.

PLR 200331005 Foundation May Invest in Rebuilding of City Downtown:   M is a private foundation that provides significant grants to charitable organizations located in City. Specifically, M provides funds for the economic development and revitalization of City. A local government entity determined that the downtown area of City was blighted.

PLR 200708088 Private Foundation Asset Transfer:   A incorporated Y and Z, recognized as two private foundations (PFs) under Sec. 509(a). A has two sets of grandchildren, the B grandchildren and the C grandchildren. Currently A, one B grandchild and one C grandchild control PF Y. A's B and C grandchildren have different charitable goals, so A proposes that PF Y transfer one-half of its assets, comprised of corporate stocks and bonds, to PF Z.

PLR 201329028 IRS Rules on Foundation's Investments:   ORG is a private foundation. LLC is an investment hedge fund with three classes of membership interests: Class A, Class B and Class C. LLC trades financial instruments on public financial markets.


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