August 13, 2024

Unraveling the Mysteries of Crowdfunding: Navigate Taxes, Regulations, and Surprising Pitfalls with Ease

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Article Highlights:

Understanding Crowdfunding
The Three Main Types of Crowdfunding:
o    Equity-Based
o    Donation-Based
o   Rewards-Based
Tax Implications of Crowdfunding
o   Business Fundraising
o   Individual Gifts
o   Charitable Gifts
SEC Requirements if Offering Investment Equity
IRS Information Reporting

In the digital age, crowdfunding has emerged as a revolutionary way for individuals and businesses to raise funds for a wide array of projects, from innovative products and artistic endeavors to personal causes and community projects. However, as with any financial activity, crowdfunding comes with its own set of tax implications and regulatory requirements, particularly when it involves raising money to fund a business. Understanding these implications and the involvement of the Securities and Exchange Commission (SEC) is crucial for anyone looking to embark on a crowdfunding campaign.

Understanding Crowdfunding - Crowdfunding is a method of raising capital through the collective effort of friends, family, customers, even strangers and individual investors. This approach taps into the collective efforts of a large pool of individuals—primarily online via social media and crowdfunding platforms—and leverages their networks for greater reach and exposure.

There Are Three Main Types of Crowdfunding:

Equity-Based Crowdfunding: Investors receive a stake in the company, typically in the form of shares.
Donation-Based Crowdfunding: Contributions are made with no expectation of return; often used for charitable and humanitarian causes.
Rewards-Based Crowdfunding: Backers receive a tangible item or service in return for their funds.

Tax Implications of Crowdfunding - The tax implications of crowdfunding can vary significantly based on the type of crowdfunding campaign and the nature of the funds raised. Generally, funds raised through crowdfunding can be considered taxable income by the Internal Revenue Service (IRS) if they are not classified as loans that need to be repaid, capital contributed in exchange for an equity interest, or gifts made out of detached generosity without any quid pro quo.

For Equity-Based and Rewards-Based Crowdfunding - If the campaign provides backers with equity or rewards, the funds raised are generally considered taxable income to the fundraiser. However, if the funds are spent on deductible business expenses, the net taxable income could be reduced to zero.
For Donation-Based Crowdfunding - Funds raised may not be taxable if they are considered gifts, but this depends on the specific circumstances and whether there is any expectation of return or benefit to the donor.

The IRS treats certain crowdfunding contributions as gifts, which means they are not taxable to the recipient. This treatment aligns with the principle that gifts are transfers made out of detached generosity. However, donors need to be aware of the gift tax rules. For instance, if an individual contributes more than the annual exclusion amount ($18,000 for 2024, but periodically adjusted for inflation) to a single recipient through a crowdfunding campaign, they may need to file a gift tax return.

A less understood but critical aspect of crowdfunding is the "gift tax trap." This situation arises when someone sets up a crowdfunding campaign to benefit another individual but initially receives all the funds themselves. The IRS views these funds as a gift to the campaign organizer, who then gifts them to the intended beneficiary. If the total amount exceeds the annual gift tax exclusion, the organizer could be liable for gift tax and may need to file a gift tax return, reducing their lifetime gift and estate tax exemption.

Some crowdfunding platforms have addressed this issue by allowing organizers to designate beneficiaries who can directly access the funds, thereby avoiding the gift tax trap. However, not all platforms offer this feature, and organizers must be diligent in how they set up and manage their campaigns.

It's important to distinguish between crowdfunding campaigns for charitable causes and those for personal benefit. Contributions to qualified charities through crowdfunding can be tax-deductible for the donor, provided all IRS documentation requirements are met. However, funds raised for individual needs, such as medical expenses or personal emergencies, are considered personal gifts and are not tax-deductible for donors. This distinction underscores the need for both donors and recipients to fully understand the tax implications of their crowdfunding activities.
SEC Requirements When Raising Money - When a crowdfunding campaign involves offering equity in a business activity, it falls under the purview of the SEC, which has established regulations to protect investors and maintain fair, orderly, and efficient markets. The SEC's involvement is particularly pronounced in equity-based crowdfunding, where businesses offer shares to investors.

Under the Securities Act of 1933, any offer to sell securities must either be registered with the SEC or meet certain qualifications to be exempt from registration. The Jumpstart Our Business Startups (JOBS) Act of 2012 introduced an exemption for crowdfunding, allowing companies to raise funds without the need for a traditional securities registration, provided they adhere to certain conditions:

o    Fundraising limit: Businesses can raise up to $5 million in a 12-month period through crowdfunding platforms.

o    Investor limitations: There are limits on the amount individuals can invest in crowdfunding projects, based on their income and net worth.The amount an individual can invest through crowdfunding in any 12-month period is limited.

a)   If the individual’s annuali ncome or net worth is less than $124,000, their equity investment through crowdfunding is limited to the greater of either $2,500 or 5% of the greater of the investor’s annual income or net worth.

b)   If the individual’s annual income and net worth are at least $124,000, their investment via crowdfunding can be up to 10% of their annual income or net worth, whichever is greater, but not to exceed $124,000.

c)    The forgoing limits are based on the SEC Updated Investor Bulletin posted on October 14, 2022. These limits change from time to time. The bulletin also includes examples of how the limits, included above, are computed as well as instructions for determining net worth. The site also includes higher investment limits for Accredited Investors. Basically, Accredited Investors have higher incomes and net worth as described on the SEC website.

IRS Information Reporting and Crowdfunding - One of the key reporting requirements for crowdfunding campaigns comes in the form of IRS Form 1099-K, "Payment Card and Third Party Network Transactions." This form is used to report payment transactions processed through payment card transactions or settlement entities. If a crowdfunding campaign processes over $5,000 (2024) in payments, the payment processor will issue a Form 1099-K to the IRS and the fundraiser. Congress has mandated the reporting threshold be reduced to $600 and the IRS is phasing in that lower threshold.

The issuance of Form 1099-K has significant implications for fundraisers:

Income Reporting - Receipt of a Form 1099-K essentially notifies the IRS that the individual or business has received payments that may be taxable.
Tax Liability - The fundraiser must report the income on their tax return, potentially increasing their tax liability. However, legitimate business expenses funded by the campaign can be deducted. Where the fundraising was not related to a business, such as with charity-based crowdfunding, and a 1099-K was issued, the 1099-K amount may need to be reported on the fundraiser’s income tax return, and then offset by a like amount, resulting in no taxable income. An explanation why the income is not taxable should be included. This procedure will prevent future inquiry from the IRS as to why the income was not reported.

Crowdfunding offers a unique and powerful means of raising funds, but it comes with complex tax implications and regulatory requirements. For businesses, understanding the nuances of equity-based crowdfunding and complying with SEC regulations are critical steps in leveraging this fundraising method effectively. Additionally, recognizing when funds raised may be taxable and how to report them correctly to the IRS is crucial for all types of crowdfunding campaigns.

If you have questions before launching a crowdfunding campaign, you may wish consult with this office to understand the specific implications for your project. Proper planning and advice can help ensure that your crowdfunding efforts are both successful and compliant with all financial and regulatory requirements.