Advisors often have trouble convincing the wealthy to make charitable gifts while they're still alive. Indeed, for years, Ann Landers, the famous personal advice columnist, prodded her friend Warren E. Buffett, one of the richest men in the world, to give more to charity. “Buffett's tightness was a sore spot with his friends,” Roger Lowenstein reported in his best-selling biography, Buffett: The Making of an American Capitalist.

According to Lowenstein, Landers was worried. “What [Warren] does is piling and heaping and heaping and piling. So what is this all about?” she said, adding that she'd tried her “darnedest” to interest the billionaire “in what he could do for the world.” But, Lowenstein wrote, Buffett “would shake” Landers “off with a chuckle.”

“In fact,” Lowenstein wrote presciently in 1995, “Buffett approached philanthropy more or less as he did investing. He refused to ‘diversify,’ preferring that his foundation give to a few ‘high-leverage’ causes that he hoped would reap the biggest social bang for the buck. Sensibly, he wanted to focus his giving, and he recognized that in the case of many charities, too much may be spent on administrator lunches and so forth. Once, hosting a crowd of friends at Laguna Beach, Buffett asked in none too casual a way: ‘If you had to give money to one charity to do the most good, which would it be?’”1

Buffett himself, now 75, answered that question on June 25 with the announcement that in the coming years he'll be donating a majority of his shares in Berkshire Hathaway to the Bill and Melinda Gates Foundation. If handed over immediately, Buffett's gift would amount to about $31 billion, the bulk of the $44 billion fortune he's spent a lifetime creating. It's a profound vote of confidence in the Gates Foundation, a leader in international public health and effective charitable funding.

Worldwide applause erupted. Nearly everybody voiced approval — particularly those who'd wanted Buffett to open his wallet while he was still alive, rather than to leave his money in bequests, as he'd originally planned. Through his bold move, Buffett served as the philanthropic world's most powerful example that giving it all away while you're alive is a good thing.

Buffett's pledge wowed for its historic size,2 as well as for the clout it gives the Gates Foundation. Even before Buffett's largesse, Bill Gates, the richest man in the world, had the world's richest private foundation with about $29 billion in assets. Number two, the Ford Foundation, controls about $11 billion.

Going forward, the questions swirling around the Buffett gift range from the technical to the psychological. Trusts-and-estates specialists will be looking for a fuller disclosure of Buffett's plan. Buffett's special condition — that the Gates Foundation spend the money rather than hold onto it — also raises the fascinating question of how the foundation will handle its dramatically increased yearly giving. And some wonder what impact this annual financial tsunami will have on the philanthropic world. Might it force charities vying for the attention of the Gates behemoth to change how they do business? Will it accomplish what Bill Gates hopes?

But most importantly for advisors: Will other super-rich donors be inspired by Buffett's egoless gift? To philanthropy experts, the most stunning and unusual aspect of Buffett's move is his decision to fund another man's foundation. Ironically, that part of the equation comes as no surprise to long-term Buffet observers: Laying big bets on enterprises headed by dedicated leaders in the hopes of maximum long-term impact is exactly what Buffett has always done, and done well.

Unfortunately, most advisors say, few are likely to follow Buffett's lead. The majority of wealth in America is created by people in their own businesses who learn the habit of control; when they turn to charity, they tend to prefer to fund their own foundations and causes. Buffett is unique in having made such a fortune by investing in others' expertise.

Yet, advisors say, wealthy donors would be wise to follow his example.

“What we don't need is more expensive structures to do philanthropy; what we need is more collaborative work,” says Claire Gaudiani, professor at the New York University Center for Philanthropy and Fundraising. “My great hope,” Gaudiani adds, “is that people who have substantial means will look for a Gates equivalent at their level… that people who are in the $100 million giving category find someone [similarly wealthy] who already has a very successful foundation and say, ‘May I do a Buffett/Gates with you?’”

WHY NOW?

One of the first questions asked and already answered is “why now?” Buffett's announcement came about two weeks after Bill Gates stated publicly that he'd be stepping down as chairman of Microsoft to devote himself to running his foundation. The timing seemed to be a deciding factor, given Buffett's lifelong proclivity for investing in companies headed by people he trusts.

Such speculation was immediately put to rest by Buffett and Gates during their national media blitz during the week of June 26. This press binge included a full-page ad in The New York Times, the publishing of Buffett's exclusive interview by his long-time friend, Fortune magazine writer Carol Loomis, and a Gates/Buffett's joint appearance on the Charlie Rose television talk show.

In fact, Buffett said, discussions about the gift between the two men, friends since about 1991, started almost immediately after Buffett's wife Susan died in 2004. Until then, Buffett had thought to leave his fortune for Susan to give to charity, through the Susan Thompson Buffett Foundation. Lowenstein's biography describes Susan as the couple's keeper of social causes. Her foundation's focus is on reproductive rights, population control and nuclear non-proliferation.

Deaths in the family and life-threatening diseases often precipitate major donations, experts in philanthropy note. After Silicon Valley millionaire Don Listwin's mother died of ovarian cancer in 2001, for example, he started the Canary Foundation to fund innovations in early cancer detection.3

Even though Buffett is investing most of charitable dollars in Gates' expertise, he's not ignoring any of his family's foundations. While five-sixths of the inter vivos gift he announced June 25 are due to go to the Gates Foundation, the remaining sixth will be divided among his deceased wife's foundation and three foundations run separately by his children, Susie, 51, Howard, 50, and Peter, 48. According to Berkshire's current value, that's at least $1 billion for each.

DEATH AND TAXES

Some observers, especially advocates of tax cuts, suggest Buffett's gift is hypocritical. The Wall Street Journal editorial page chided Buffett for giving his money to charity rather than to the government in federal estate taxes. Buffett has been one of a handful of wealthy Americans to publicly denounce efforts to eliminate the federal estate tax, which repeal advocates deride as “the death tax.” So even while praising Buffett's “jaw-dropping generosity,” the Journal editorial June 28 claimed that “in practice,” Buffett “is in favor of death taxes only for those whose estates are too small to hide in foundation tax shelters.”

But that criticism is wide of the mark, say charitable-giving experts. Buffett is making good on his promise that his children won't personally inherit his megafortune, they note. Self-made men like Buffett, says Robert F. Sharpe, Jr., of the Sharpe Group in Memphis, Tenn. “don't necessarily want big government. They simply believe that, when their turn at the monopoly game is over, their money should go back into the game.” They believe that “if the wealthy don't relinquish their fortunes voluntarily, then government should force them — so society avoids creating an oligarchy.”

HOW BIG?

In the avalanche of press that followed the Buffett/Gates roadshow, many of even the most respected media outlets mistakenly reported that Buffett's generosity means the Gates Foundation has $60 billion in assets. That's not true now, “nor will it ever be as a result of Buffett's munificence,” noted Professor Harvey P. Dale, director of the National Center on Philanthropy and the Law at New York University.

Buffett's gift stipulates that, starting this year, a certain portion of his Berkshire shares will go to the Gates Foundation every year. If Buffett dies before the transfer of all shares designated for the Gates Foundation is complete, the balance will be shifted at once. But Buffett stipulated that this will happen only as long as Bill Gates or Bill's wife Melinda are involved in their foundation. While Bill is just 50 and Melinda 41, accidents and other misfortunes can occur. Buffett hasn't stated publicly where the shares would go if tragedy struck before the shares were completely transferred to the Gates Foundation.

Also, Buffett has stipulated that, starting in calendar year 2009, the value of the stock he gave the previous year must be dispersed in the current year — in addition to the Gates Foundation's own legally mandated annual payout of 5 percent of its net assets. If that total dispersal kicked into effect this year, the foundation's funding of charities would more than double from about $1.5 billion to about $3.6 billion. If the value of Berkshire stock rises, this total might be greater in 2009 and subsequent years.

But, as Dale notes, by requiring yearly distribution of his gift, Buffett has guaranteed that the assets will not accumulate in the Gates Foundation.

There is, however, no requirement that the Buffett-mandated yearly distribution of cash come from the sale of its Berkshire stock. The Gates Foundation certainly has other wealth to tap, so it could disperse the amount the Berkshire stock is worth when transferred. And keeping Berkshire stock might be a good idea, given its steady rise over the years and the fact that Buffett — who's not prone to over-promising — recently said he expected its value to rise. The Gates Foundation's holding onto its Berkshire stock also might serve Buffett's lifelong preference of limiting the number of shareholders in his company, that is to say, “owners” he must answer to. That goal might be further served by the fact that the Buffett/Gates Foundation deal also makes Buffett a trustee of the foundation; the only other trustees are Bill and Melinda.

Of course, the Gates Foundation must be careful not to get overly concentrated in Berkshire stock so as to avoid the problem faced most famously by the W.K. Kellogg Foundation and the David and Lucile Packard Foundation. Both of these foundations suffered deeply when the value of the stocks in which they were primarily invested dropped; the Kellogg Foundation was concentrated in Kellogg Company stock; the Packard Foundation in Hewlett-Packard.

On the tax front, the Gates Foundation also must be careful to avoid any problems with its portfolio of Berkshire stock violating rules against excess business holdings and self-dealing as long as Buffett remains on the foundation's board.4

A PASS-THROUGH

Buffett is not naming the lawyer(s) who helped him with his plan.5 But, from his public letters explaining his intentions, “the footprint is clear,” says Dale. And tax planners marvel at the simplicity of Buffett's gift.

The biggest tax savings for Buffett is one that charitable giving expert Conrad Teitell of Cummings & Lockwood LLP in Stamford, Conn., notes is “something every planned giving officer says 50 times every day” to potential donors: “If you give real estate or long-term appreciated stock you don't have to report capital gains.”

Says Betsy Buchalter Adler, a partner in the San Francisco law firm of Silk, Adler & Colvin: The “gorgeous thing about this gift is Buffett is doing what he wants to do, but he's not driven by tax planning and yet it's still the most effective and tax-efficient plan.”

Buffett also gets an income tax deduction of which he probably won't make full use: Donors can deduct the full fair market value (FMV) of their gifted, publicly traded stock up to 30 percent of their adjusted gross income (AGI) for the year if they give the stock to a public charity or 20 percent of AGI if they give it to (most) private foundations. But this FMV deduction for gifts of “qualified appreciated stock”6 to private foundations applies only as long as the donor's total gifts of such stock do not exceed 10 percent of the value of all the corporation's outstanding shares. Anything over 10 percent, and the donor's deduction drops to his basis, that is to say what he paid for the stock.

Because Buffett plans to give away more than 35 percent of Berkshire's outstanding stock, Dale says, the “qualified appreciated stock” exception will not cover all of his contemplated gifts. Dale's guess is that Buffett would “run out of that particular exception in about three or four years.”

That's probably why, says Dale, Buffett has required the Gates Foundation, starting in 2009, to give away not only 5 percent of its assets every year, but also the full amount of Buffett's prior year's donation to the foundation. This activates another exception: It causes the Gates Foundation to become a “pass-through” foundation and makes it a public charity for his tax purposes. (The gift simply passes through the foundation.) That means Buffett's income tax deduction will continue to be the FMV (not basis) of the stock he donates, and his deduction will be limited to 30 percent (rather than 20 percent) of his AGI.

“He's probably not going to have enough AGI to absorb all of this,” says Adler. Buffett is known for taking a small salary and living modestly. (For many years, Buffett's salary has remained at $100,000, and he's taken no bonus, as Berkshire's chief executive officer.) But, Dale says, Buffett probably could use an income tax deduction greater than his basis in his Berkshire shares, as he's owned that stock for a long time and it has appreciated considerably (to put it mildly).

Still, the most important deduction for Buffett is the gift tax charitable contributions deduction. And, “happily for him,” Dale says, “that deduction is for the fair market value of his gifts and is free of the other traps, complexities and limitations that afflict the income tax deduction.”

TSUNAMI

For the Gates Foundation, Buffett's gift creates an administrative, as well as a spending challenge. The enormity of both these tasks should not be underestimated. That's why it seems “so sensible” for Buffett to put money in a little at a time; to give the Gates Foundation a full two years to gear up administratively before it must begin dispersing Buffett's gift, says Laura H. Peebles, a director of Deloitte Tax LLP in Washington and a specialist in tax-exempt organizations.7 Otherwise, “you risk having to scale up in a hurry and make hasty decisions just to meet the tax law standards.”

The worst scaling-up problems come with post-mortem funding, says Peebles. She sees this “especially with Depression Era babies who won't let go of their money during their lifetimes, because they're so worried about running out of money,” no matter how unrealistic that fear might be. “[Y]ou can barely get them to make their annual donations.” So, at death, they dump $100 million on a foundation and that can be an administrative disaster, says Peebles.

But there's also the challenge of exactly who should receive the Gates Foundation money: Finding causes is easy; funding them effectively often is not. “I can't tell you the number of New York City program officers dealing with small endowments who tell me, ‘We can't find enough good organizations’” to fund, says Charles ‘Chuck’ Hamilton, executive director of The Clark Foundation, which is, as one observer put it, “mucho big” itself, with assets of about $546 million.

“The Gates foundation gift should, and probably will, highlight the importance of showing good results and proving good outcomes,” says Hamilton, adding “that would not be revolutionary, but a great kick in the pants.”

There may be some increased competition among recipient charities in the areas of the Gates Foundation interest, but then they are always working hard to attract money from foundations, observes Burton A. Weisbrod, a professor of economics at Northwestern University's Institute for Policy Research who specializes in the study of the nonprofit sector.

Diana Aviv, chief executive officer and president of the Washington-based Independent Sector, a coalition of about 550 charities, foundations and corporate-giving programs, adds that the impact of Buffett's extra $1.5 billion a year should be put into perspective: The total budget of public charities for 2003 was almost $1.934 trillion. Put another way, she notes, 66,000 foundations in the United States in 2005 gave away $33.6 billion. Buffett's gift of $1.5 billion, generous as it is for one man to make, would be a mere 5 percent increase in private foundation giving — and that will come in the areas identified by the Gates Foundation.

This means there's plenty of work left for other philanthropists, particularly those interested in social and local causes where the Gates Foundation isn't in the mix, says Karen Putnam, director of Philanthropic Advisory Services at Bessemer Trust in New York.

BID FOR HISTORY

So what will Gates be able to accomplish? The foundation's focus has been on world health, fighting such diseases as malaria, HIV/AIDs and tuberculosis. Domestically, it has concentrated on improving U.S. libraries and public high schools. In all its efforts, the strategy has been primarily on research and development. Certainly, the foundation is not afraid to use its clout. The latest example: on July 19, the foundation awarded $287 million to AIDs researchers working on developing the HIV vaccine — but only under the condition that they pool the results of their work.8

To Peebles, Gates is following in the footsteps of John D. Rockefeller, who, at age 57, turned over to others the day-to-day leadership of the company he'd built, Standard Oil, and focused his efforts on philanthropy, giving away the bulk of his fortune. In 1901, he founded the Rockefeller Institute for Medical Research (now The Rockefeller University) and dedicated it to discovering the causes, prevention and cure of disease. Rockefeller scientists' many achievements include the serum treatment for spinal meningitis and pneumonia, as well as a treatment for African sleeping sickness. In 1902, Rockefeller established the General Education Board to work to promote education in the United States. And around 1909, he essentially said “find me a disease I can cure.” The answer came back to him, Peebles says, that technology was such that, with education and clean water sources, he could eradicate hookworm disease, which was then ravaging the Southern United States. So that's exactly what Rockefeller did. And, as Peebles notes: “When was the last time you heard of hookworm?”

It's the Buffett/Gates money combined with the fact that Bill Gates will be personally involved in his foundation that should magnify the foundation's impact. Says Aviv: “That's a geometric jump in influence and reach, given that what Gates has, more than anybody else in the world, is access: There's nobody in power or influence who won't return his call. Having more money available will allow him to partner with other powerful people to make a big difference.”

In August, for example, Bill Gates and former President Bill Clinton will share the podium in Toronto at the XVI International Conference on AIDs to talk about how to fight HIV. The Gates Foundation has given small grants to the Clinton Foundation's effort to find ways to improve access to HIV/AIDs drugs. And in July, Bill and Melinda traveled with Clinton to Africa to visit his foundation's clinic.

Everyone seems to agree that Buffett's gift and Gates' efforts are very positive. But not everyone has high hopes that they are going to change the world significantly.

Says Weisbrod, “If the money continues to be spent in areas that the Gates Foundation has identified, they might be able to make a major difference in the lives of some relatively small group of people, let's say in Africa. But a billion and a half dollars a year is really small potatoes in the face of even that continent's problems.”

The full task certainly is daunting. The key issues, as Weisbrod sees them, are: If the programs are successful and people live longer and are more educated, will there be productive jobs for them? Can the area in which they live support a population explosion? Quality of life and increased opportunity hinges on foreign investment policies and “that is not something the Gates Foundation will be able to control,” he says. Massive financial changes are necessary, as well as associated socio-cultural adjustments.

In other words, although some in the charitable giving world may fear that the Buffett/Gates money will crowd out government spending, there is, in fact, a lot of work left for national governments and world organizations, like the United Nations, as well as other philanthropists, no matter how small their contributions.

Speaking at the New York Women's Foundation 2005 celebration of neighborhood leaders and their achievements, Nobel Peace Prize winner Wangari Muta Maathai of Kenya told a story about a little bird: Seeing the forest on fire, the bird flew to the river, scooped up some water in its tiny beak, and flew back to drop it on the conflagration. “What are you doing?” asked the other animals. “You cannot put out this fire by yourself.”

To which the bird, refusing to stop, said: “I'm doing what I can.”

Endnotes

  1. Roger Lowenstein, Buffett: The Making of an American Capitalist, (Doubleday, New York, 1996) at pp. 343-344.
  2. According to Fortune magazine, Andrew Carnegie from 1902 to 1919 gave $350 million, which would be $7.2 billion in current dollars; John D. Rockefeller from 1889 to 1937 gave $530 million, which would be $7.1 billion current dollars; and John D. Rockefeller, Jr., from 1927 to 1960 gave $475 million, or $5.5 billion in current dollars.
  3. David P. Hamilton, “Ex-Executive Backs Big Push to Get a Jump on Cancer,” The Wall Street Journal, July 12, at p. A1.
  4. David T. Leibell of Cummings & Lockwood LLP explains: The excess business holdings rule says that the combined holdings of disqualified persons (in this case Warren E. Buffett) and the foundation (Bill and Melinda Gates Foundation) cannot exceed 20 percent of the value of the voting interests in a company (here, Berkshire Hathaway), or 35 percent if effective control is in the hands of non-disqualified persons. There is, however, a safe harbor if a foundation owns less than 2 percent of the voting stock. The sweeping self-dealing rules relate to transactions between a disqualified person and the foundation or entities controlled by the foundation.
  5. Berkshire and the Gates Foundation declined to name Buffett's counsel in these tax matters.
  6. The deduction is found in Internal Revenue Code Section 170(e)(5). Qualified appreciated stock is publicly traded stock that is capital gain property.
  7. Professor Harvey P. Dale of New York University notes that, if Buffett were to allow his $30 billion to accumulate in the Gates Foundation, the foundation would be required to spend about $3 billion a year only when his gift was complete — decades from now. Instead, Buffett is forcing his money be spent starting in 2009. That means the foundation will begin spending in 2009 more than $3.5 billion a year, every year, the amount that would be required of a foundation worth $70 billion. “This is a much faster distribution and magnifies the impact of the foundation hugely,” says Dale.
  8. Marilyn Chase, “Gates Won't Fund AIDs Researchers Unless They Pool Their Data,” The Wall Street Journal, July 20, at p. B1.

Spotlight

Cuddly Creatures: This Steiff teddy bear, complete with collar, was estimated to sell for between 3,000 to 5,000 GBP. It sold for 4,800 GBP (about $8,920 USD) at Christie's South Kensington “Teddy Bear” auction on July 4.