Why should US Foundations consider PRIs and Equity PRIs?

Authored by:

John E. Tyler III; General Counsel, Secretary, and Chief Ethics Officer; Ewing Marion Kauffman Foundation

Robert A. Wexler; Principal; Adler & Colvin

Program Related Investments (PRIs) are a tool traditionally associated with private foundations. That is because U.S. federal law imposes specific compliance obligations to regulate private foundation activities. Those laws recognize PRIs as exceptions to some of those obligations. As such, those laws encourage private foundations to use PRIs. While compliance positioning suggests applications limited to private foundations, the use of PRIs is not and should not be so limited. Their use by others can unlock and address opportunities to align market engagement with pursuing and achieving charitable objectives while still preserving and even growing capital.

What are PRIs generally?

Under United States federal tax law, private foundations can presume that grants to organizations exempt from taxation under 501(c)(3), which we generically call “charities,” satisfy compliance obligations under law. That is why most foundations focus so much on grants to charities. Foundations can also make grants to non-charities, including for-profit companies, as long as the foundation exercises what’s called “expenditure responsibility.” Of course, in both instances, grants are money given with no expectation of its preservation, growth, or return – at least in any way that financially benefits the foundation.

PRIs are a tool that the United States Congress has made available to foundations to get money to others while allowing the foundation to have and impose expectations that money can be returned to the foundation and even grown with interest, dividends, and/or capital gains. The foundation can then redeploy those funds again for its charitable purposes.

Among the still too few PRIs that foundations make, most are in the form of loans; some are guarantees. Even fewer are equity investments. All three and derivations of them are allowed.  

From a regulatory compliance standpoint, the essential core of PRIs is two-fold. First, the PRI must significantly further the specific private foundation’s charitable purposes under 501(c)(3) and but for that connection, the foundation would not make the PRI. Thus, “charitability” of purpose must dominate for the foundation, although not necessarily for the entire venture or enterprise. The second purpose reinforces the first: no significant purpose for the foundation in making the PRI may be the production of income or appreciation of value. Thus, “owner”-like financial interests may not be significant; not only may they not predominate, they may not be significant, which helps preserve charitability as the priority.

That emphasis on charitability allows private foundations to count their PRI payments towards their annual mandatory payout minimum. That emphasis also justifies not considering such payments as taxable expenditures and excepting them from requirements about prudent investing and caps on levels of equity or profits interests held in for-profit enterprises. Rules regarding self-dealing and co-investing still apply, however.

The main point for purposes of this article is the emphasis on prioritizing charitability under 501(c)(3) along with potential for return of and growth on funds provided as PRIs. For practical guidance on how to implement PRIs, please see our related PRI overview.

Why should foundations make PRIs, especially using equity?

Often grants are ideal for private foundations to pursue their charitable objectives and fulfill their responsibilities. Investing through the endowment facilitates preserving and growing its financial assets and might have some usefulness for pursuing charitable purposes and/or broader concepts of social good. Sometimes, however, the right tool is neither grant nor pure investment because the incentives and opportunities inherent in those tools are not quite right.

Sometimes there are opportunities to focus attention and dollars on solutions and outcomes that align charitability with market participation. Examples might include proving concepts around clean energy, biomedical devices, health care diagnostics and treatments, environmental remediation, tools for education, access to capital by the underserved, or economic development of economically disadvantaged areas and populations, among others.

A foundation might use PRIs because there is potential for money to be returned to and redeployed by the foundation. And why shouldn’t the foundation occasionally be the one to determine how those funds are used – especially to again further its charitable purposes? Moreover, the foundation can participate in economic upsides, which incidentally also can help protect against impermissible private benefit.

A PRI can align incentives of the recipient with the foundation’s charitable purposes, at least to some degree. It can also adapt incentives within the recipient because, unlike grant dollars that are not returned and for which there is no expectation of return, there are different notions of responsibility and accountability. Depending on how the PRI is structured, these incentives might facilitate or inhibit risk taking and resource allocations by the recipient.

Loans, especially if secured in some way, might tend to inhibit responsible risk taking. Guarantees might facilitate responsible risk taking by the recipient while also more directly encouraging others’ commitments and enabling mutual leveraging.

Equity also might facilitate risk taking by the recipient because repercussions of failure can differ from loans. Given charitable pursuits and purposes, a private foundation might want those risks taken. Equity also can provide the foundation with a different type of oversight of management and ability to ensure accountability to its charitable objectives. As an equity holder, a foundation can have more of a voice in decisions about allocation of resources, including towards responsible risk taking and assessing progress towards charitable objectives. A foundation with equity has an opportunity to influence other owners, sometimes even as vocal support for management’s shared priorities. Such a foundation also has a seat at the table when subsequent capital injections into and outflows from the company are being evaluated, including especially their dilution or facilitation of charitable pursuits and results.

Of course, the foundation should ensure that it is knowledgeable, responsible, and careful to not unduly burden the entrepreneurs and managers it is supporting or to protect against inadvertently interfering with its charitable pursuits thereby cutting off its nose to spite its face!

So, why should others use PRIs, especially with equity?

The same considerations about using equity discussed in the preceding paragraphs about foundations apply to charitable and non-charitable investors as well.

Even though they do not have the same compliance obligations as private foundations, charities, endowments, and donor advised funds and their hosts, still must pursue charitable purposes and protect against impermissible private benefit. Using PRI approaches can facilitate both of those requirements. There is a certain discipline inherent in PRIs that these organizations can use to their advantage when appropriate, including channeling strategic thinking and direction while evaluating and forming relationships, setting frameworks for due diligence, negotiating expectations, and establishing parameters for reporting and accountability, among other things.

Of course, family offices, “impact” investors, and other non-charitable investors do not have the same legal responsibilities as private foundations and other 501(c)(3) organizations. But they nonetheless sometimes want to accomplish objectives that align with charitability. They sometimes realize that certain societal gaps and opportunities justify taking a different level of risk to address them. They sometimes want to align incentives (including economic) and direct/leverage resources towards those gaps and opportunities for which there may be financial upsides along with intended charitable results. The PRI’s emphasis on charitability can facilitate these objectives.

Additionally, Foundations can play a crucial catalytic role by structuring PRIs in for profit ventures as opposed to providing grants to charitable institutions. In for profit ventures, non-charitable investors who do not have the same legal responsibilities of foundations, may benefit from the catalytic role of the capital provided by foundations, whereas a grant to a charitable entity would not promote follow on investments by non-charitable investors.

Such non-charitable investors might adapt PRI mechanisms and mindsets to pursue social goods that, while not narrowly charitable, are not necessarily mostly profit-oriented either.

Why others benefit from at least a basic understanding of PRIs, especially equity?

One reason for others to understand PRIs is, as noted in the prior section, because the PRI mechanics and mindset can be adapted to other pursuits and purposes. Another reason is that hopefully more foundations will expand usage of PRIs as part of their toolkit for pursuing their charitable purposes. As that happens, especially if equity approaches are embraced, the likelihood is that other investors’ efforts will overlap with those of foundations – as each leverages the other. Because private foundation compliance with PRI requirements is not optional there is a third reason for others to better understand PRIs. Transactions that involve both foundations and others will become more efficient and less costly. Because no one really wants focus to be on the transactions themselves, understanding will permit quicker and better focus of attention and resources on their respective underlying objectives.

Program Related Investments (PRIs) for United States Foundations Overview

More and more wealthy families are interested in using their family assets, their private family foundations, and their donor-advised funds to do more than traditional grant making. They are looking instead to make loans to charities, and loans to‑‑and even equity investments in‑‑for-profit entities that are furthering charitable purposes. By adopting the program-related investments (“PRIs”) approach, a foundation and other investors have an opportunity to recycle the funds as they are repaid, for additional charitable purposes, thereby potentially increasing the long-term impact of their charitable assets.

This article provides information about the mechanics of PRIs, especially from a compliance context for foundations. Even so, there is much that can be adapted from PRIs that can be useful to other investors wanting to advance charitable purposes and outcomes while also preserving, even growing, and eventually recycling their investment.

Who is the PRI investor?

From an IRS compliance standpoint, we generally are talking about private foundations – that is, nonprofit corporations (or trusts) that are tax-exempt under Section 501(c)(3) of the Internal Revenue Code (the “Code”) and that are classified under Section 509(a) as private foundations. To be clear, though, Section 501(c)(3) public charities, including their donor-advised funds, could also take advantage of these investments, as can others.

What is a PRI? What are its advantages for a foundation?

A PRI is an investment that a foundation makes from its charitable pool of assets, not from the assets it intends to invest for purposes of growing the endowment. Therefore, a PRI is not subject to traditional investment policies and prudent investor standards. Nor is a foundation required to limit its levels of ownership as required by the “excess business holdings” rules, although they still must comply with the self-dealing and co-investment rules.

A PRI counts towards satisfying a foundation’s required five percent minimum distribution requirement. Unlike a grant that a foundation does not expect to see any money from, a foundation must understand how to treat money returned to it pursuant to a PRI. That money is of two types: (1) return of the principal or invested amount; and (2) distributions or payments of interest, dividends, or appreciation over and above the first category. Category one returns increase the annual payout obligation of the foundation for the given time period such that the foundation must payout at least 5% for that period plus amounts returned as category one payments. Category two payments are treated as investment income to the foundation, just like any other investment income. Losses — that is returns and payments that do not equal the category one principal or invested amount — are not available to reduce endowment or gains from unrelated business taxable income on which taxes must be paid.

A PRI must satisfy all three of the following tests:

  • The investment must further one or more charitable purposes of the foundation such that “but for” the investment’s connections to the foundation’s charitable purpose it would not be made. This is a determination specific to each foundation, its mission, and the proposed PRI;
  • The production of income or the appreciation of property may not be a significant purpose of the investment; and
  • As is true of any foundation grant, the PRI cannot be used to fund electioneering or lobbying activities.

In addition, when the investment is made in a for-profit entity, the foundation must exercise “expenditure responsibility” over the investment, which involves careful due diligence before making the investment, correct provisions in the investment documents, reporting back to the foundation on the use of funds, proper reporting on the tax return, and follow-up with the investee if it is not properly spending the invested funds.

For additional information on expenditure responsibility, please see the following publications by Adler & Colvin:

Certainly, as the preceding makes clear, foundations have regulatory reasons for complying with these requirements. Other 501(c)(3) organizations can also benefit from adopting these requirements as aids in fulfilling their own legal obligations to ensure charitable use of their assets and to protect against impermissible private benefit. For other than 501(c)(3) investors, adaptations of the above approach can contribute to their objectives, especially approaches to due diligence, reporting, and accountability.

How does a PRI satisfy the charitability requirement?

First, the investment must be intended to further a recognized charitable purpose under Section 501(c)(3). Note that the activity being funded does not have to qualify under Section 501(c)(3). Classic PRI examples include funding a for-profit bank or grocery store in a poor or deteriorating neighborhood that does not have access to these services. Running a grocery store or bank is not charitable, but relieving poverty, giving underserved people easier access to healthy food, combatting community deterioration, and helping communities without access to safe banking, are charitable purposes.

Second, the purpose must be one that is within the foundation’s mission. A foundation whose purposes are limited to supporting public television would not want to make a PRI to put a grocery store in an underserved community.

The Kauffman Foundation has developed a charitability term sheet as an example of how a foundation structured a particular investment to further its charitable mission and ensure accountability thereto. The example involves investing in a private equity fund(s) targeting activities to provide capital to under-represented and underserved entrepreneurs. That is, those who are of color or are women unable to attract capital from traditional sources because of those characteristics and to entrepreneurs whose companies operate in economically disadvantaged areas.

How does a foundation demonstrate that no significant purpose of the investment is profit-oriented?

There is no requirement that the investment fail or that it does not generate a profit – potentially even at market. The test, rather, is one of intent or purpose. Is this the type of investment that the foundation would make under its own investment policy and investment standards? Will other market participants likely participate on the same terms and conditions? If so, then it is not likely going to satisfy the ‘no significant purpose’ test. Some of the factors that foundations should consider in favor of satisfying this test include:

For PRI Loans and Guarantees:

  • a lower than market interest rate;
  • no security or weak security;
  • subordinate positioning relative to others;
  • banks and other commercial lenders are not willing to loan on these terms; or
  • the loan is needed as a catalyst for equity investors.

For PRI Equity Investments:

  • insufficient commercial investors are willing to invest generally or on these terms;
  • high risk investment, with limited liquidity or risky exit; and
  • the investment is needed as a catalyst for obtaining loans or other investments.

Complying with this second prong of the PRI elements must be balanced with protecting against others unduly benefiting from the foundation’s positioning. Impermissible private benefits must still be avoided.

Authored by:

Robert A. Wexler; Principal; Adler & Colvin

John E. Tyler III; General Counsel, Secretary, and Chief Ethics Officer; Ewing Marion Kauffman Foundation