U.S. Charities Supporting Hurricane and Disaster Relief

Newsletter

As the aftermath from Hurricanes Helene and Milton continue to unfold, charitable organizations have pondered how they can provide aid to individuals who are in need of medical supplies, housing, and other basic necessities. U.S. charitable organizations can play a pivotal role in assisting individuals impacted by Hurricanes Helene and Milton, provided that certain requirements are satisfied.

I. Disaster Relief Generally

As a preliminary matter and as a broad overview, a Code (defined below) Section 501(c)(3) organization’s disaster or emergency hardship relief program must be structured to ensure that the organization serves public, rather than private, interests. To be considered charitable, the program generally must, at a minimum, meet the following requirements: (1) the class of persons eligible for assistance from the organization must be sufficiently large or indefinite such that providing aid to members of that class benefits the community as a whole (e.g., Floridians impacted by the humanitarian crisis, instead of (for example) members of a specific Floridian family); (2) the charitable organization must have control and discretion over the disbursement of funds (e.g., not controlled by a donor); and (3) aid recipients must be selected on an objective and non-discriminatory basis.

Other requirements or restrictions may apply depending on the specific facts and circumstances, including, but not limited to, the grantor organization’s foundation status (e.g., public charity versus private foundation), the type of aid to be provided (e.g., financial assistance, food and water, medical supplies, etc.), and the basis for assistance (e.g., financial or other need).

II. Employer-Sponsored Programs

Employers may be looking for ways to help employees who were impacted by Hurricanes Helene and Milton. The IRS allows employers to provide disaster relief assistance, including without limitation, direct giving assistance. Importantly, employer-sponsored relief programs must be structured in a way to ensure that any benefit to the employer is merely “incidental and tenuous.” In addition, the employer’s selection committee must be independent, meaning the employer is unable to exercise undue influence over the selection of aid recipients.

In addition to direct relief, an employer may have separate charitable funds which they may wish to use to provide disaster relief support to employees. These include funds formed as a public charity, private foundation (e.g., a corporate foundation) or a donor-advised fund. As explained below, additional specific requirements apply depending on whether an employer provides disaster relief to its employees through one of the above-mentioned funds.

Employer-Sponsored Public Charities

An employer-sponsored public charity’s disaster relief program may provide aid to employees for any disaster or emergency hardship, provided certain minimum requirements are met. An employer-sponsored public charity’s disaster relief program must generally satisfy the following requirements:

  • the class of beneficiaries eligible for relief must be sufficiently large or indefinite to qualify as a charitable class (g., employees of Charity, Inc., who are adversely impacted by any disaster, not just the current one);
  • recipients must be selected based on an objective determination of need; and
  • recipients must be selected by an independent selection committee, or adequate substitute procedures must be in place to ensure that any benefit to the employer is incidental and tenuous.

By meeting the above minimum requirements, the IRS will presume that any payments from the public charity to the employee are made for charitable purposes and do not result in taxable compensation to the employees.

Private Foundations

An employee-sponsored private foundation’s disaster relief program by contrast may provide aid to employes only in connection with a “qualified disaster” as defined under Section 139 of the Internal Revenue Code of 1986, as amended (the “Code”). Qualified disasters under Section 139 of the Code includes, among others, (a) disasters determined and declared by the President of the United States; and (b) disasters resulting from any events determined by the Secretary of the Treasury to be catastrophic.

At this time, President Biden nor the Secretary of the Treasury has declared Hurricane Helena or Hurricane Milton a “qualified disaster” for purposes of Section 139 of the Code.

Donor Advised Funds

An employer-sponsored donor advised fund may provide aid to employees and their family members who are victims of a qualified disaster in the following circumstances:

  • the fund serves the single identified purpose of providing relief from one or more qualified disasters as defined in Section 139 of the Code;
  • the fund serves a charitable class;
  • the recipients of grants are selected based on an objective determination of need;
  • the selection of recipients of grants is made using either an independent selection committee or adequate substitute procedures to ensure that any benefit to the employer is incidental and tenuous (the selection committee is considered independent if a majority of its members consists of persons who are not in a position to exercise substantial influence over the employer’s affairs);
  • no payment is made from the fund to or for the benefit of any director, officer, or trustee of the sponsoring community foundation or public charity, or members of the fund’s selection committee; and
  • the fund maintains adequate records to demonstrate the recipients’ need for the disaster assistance provided.
III. Income Tax Treatment of Disaster Relief Payments

For U.S. Federal income tax purposes, gross income generally includes all income from whatever source derived, unless a specific exception applies that would exclude the income. For example, with respect to disaster relief, payments received from a 501(c)(3) tax-exempt organization are considered to be gifts that are excludable from the recipient’s gross income, so long as the organization complies with the requirements and restrictions discussed in this Alert (and in IRS Publication 3833). Likewise, the IRS will consider the surrounding facts and circumstances in determining whether the payment qualifies as a gift for purposes of Section 102 of the Code for payments made to a for-profit business. Under certain circumstances, other income exclusions may apply. For example, qualified disaster relief payments from any source, including non-charitable entities or individuals, are excludable from income under Section 139 of the Code.

This update is intended as a general summary of legal matters and not as specific advice to any particular client. If you have any questions concerning the subject matter of this update, please contact your Quarles attorney or:

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