PRIs have existed since 1969 and there are numerous examples in the Treasury Regulations and rulings of approved PRIs—including PRIs in traditional LLCs. Thus, as a technical matter, one could create the “effect” of an L3C by forming up an LLC and ensuring that its operating agreement and activities satisfy the requirements in Treas. Regs. § 53.4944-3. However, there would be no IRS screening mechanism or public information return filing requirement in the absence of the proposed federal legislation. These procedures would help ensure that foundation and charity investments in PRIs are appropriate and accomplish charitable purposes. In addition, the proposed legislation is designed to help facilitate PRIs and, accordingly, the flow of capital from foundations to organizations providing charitable services to the community—a particularly important objective in the current economy. While the question assumes that foundations (in particular, “the big guys”) make significant PRIs, recent data reveal that the opposite may be true. According to a survey of more than 72,000 independent, corporate, operating, and community foundations, qualifying distributions in 2006 were approximately $43 billion. PRIs accounted for only $310.5 million (0.72%) of these qualifying distributions. (The Foundation Center, Aggregate Fiscal Data by Foundation Type, 2006 (published in 2008), available at http://foundationcenter.org/findfunders/statistics/pdf/01_found_fin_data/2006/02_06.pdf.) 88% of the 2006 PRIs were made by independent and corporate foundations. However, even for these organizations, PRIs accounted for only 0.81% of their total qualifying distributions. These statistics demonstrate that foundations of all sizes are simply not using the full array of tools available to them under federal and state law to accomplish their charitable missions, and, in particular, are not utilizing the PRI concept to enlist resources from the taxable sector to leverage charitable dollars in furtherance of those goals. We are not aware of any statistics showing how many of these PRIs are made with, or without, out a private letter ruling; however, we note that all private letter rulings involving PRIs must be publicly released under § 6110 of the Code, and relatively few such rulings have been so released. According to our research, the IRS has released between 20 and 25 rulings addressing PRIs during the past 10 years. We do understand, however, that the disproportionately low number of PRIs relative to grants is caused in part by foundations’ perception that the transaction costs associated with making PRIs are quite high. Given the fiduciary obligations imposed on foundation managers by state and federal laws, it is highly improbable that a foundation would deliberately avoid seeking a private letter ruling because it feared that its proposed investment would not be approved by the IRS as a PRI. It is far more likely that the time and expense associated with seeking a private letter ruling (time spent by counsel preparing the request, plus an $8,700 IRS user fee, plus a wait of up to a year to receive the ruling) deter foundations from making PRIs. Disclaimer: |