Publicly Supported? Passing the Test

By: Helen Weeber

February 23, 2023

Unless 501(c)(3) organizations prove they’re publicly supported, the IRS assumes they’re private foundations. The distinction is important, because publicly supported charities enjoy higher tax-deductible donation limits and generally are exempt from excise taxes and related penalties.

The tax code recognizes several types of publicly supported organizations, but most 501(c)(3) charities fall into one of two categories. The first, Sec. 509(a)(1) organizations, primarily rely on donations from the general public, governmental units and other public charities. The second category, Sec. 509(a)(2) organizations, have significant program revenue. The IRS has established tests for each type of organization. If your nonprofit doesn’t pass the 509(a)(1) test, it may qualify under Sec. 509(a)(2).

First Test

The Sec. 509(a)(1) test requires that:

You have at least one third of your total support from the public, governmental agencies or other public charities, or
You have at least 10% of your total support from such sources and that the “facts and circumstances” indicate you’re a publicly supported organization.

Several facts and circumstances help determine whether your organization qualifies — for example, whether you have actual sources of support above the 10% threshold, answer to a representative governing body and serve the general public on a continuing basis. Such tests measure public support over a five-year period, including the current and four prior tax years.

The public support percentage excludes certain types of contributions, program revenue fees from related activities, unrelated business income, investment income and “unusual grants.” Net income from unrelated activities and gross investment returns are included in total support, though unusual grants aren’t.

Second Test

Under the Sec. 509(a)(2) test, your organization must receive at least one-third of its support from contributions from the public and gross receipts from activities related to its tax-exempt purpose. No more than one-third of its support may be from investment income and unrelated business taxable income. Public support is measured over a five-year period.

This test is subject to limitations. When calculating public support, you can count only the greater of $5,000 or 1% of your total exempt-purpose-related revenue from a single individual, corporation or governmental unit in the numerator. Receipts of any type or amount from disqualified persons, such as board members, aren’t considered public support either.

Be careful about misclassifying gross receipts that are subject to the limits. IRS auditors will look for payments that should be deemed gross receipts but instead are classified as, for example, contributions, gross investment income or unrelated business taxable activity.

Mission Critical

It’s critical to maintain your nonprofit’s publicly supported status. Certain organizations, including universities and churches, automatically qualify as public charities. For other nonprofits, contact us for help determining whether you pass one of the two tests.