Could the Courts Redefine What It Means for Charities and Other Tax-Exempt Organizations to Engage in Political Activity?

There are at least two pending cases that could redefine how federal tax law defines various types of political activity for charities and other tax-exempt organizations. First, the Freedom Path v. Lerner case in the Northern District of Texas arises out of the application controversy I discussed yesterday, but also includes a challenge to the "facts and circumstances" approach used by the IRS in Revenue Ruling 2004-6 to determine what activity constitutes political campaign intervention as applied to Freedom Path's activities. While that Revenue Ruling relates to non-charitable, tax-exempt organizations, the IRS uses a similar approach with respect to charities as illustrated by Revenue Ruling 2007-41. For the latest decision in this litigation, granting in part and denying in part the government's motion to dismiss, see this May 2016 U.S. District Court opinion.

The other case is Parks Foundation v. Commissioner, and the related case of Parks v. Commissioner, which are currently pending before the U.S. Court of Appeals for the Ninth Circuit. An issue at the heart of this case is how attempting to influence legislation (i.e., lobbying) is defined for purposes of the prohibition on private foundations engaging in such activity (and the related limit on lobbying by public charities). This case is notable because it has attracted an amicus brief in support of the appellants from the Alliance for Justice and the Council on Foundations, as well as attention from the James Madison Center for Free Speech, for which one of the the General Counsels is James Bopp, Jr. (who has brought many successful First Amendment cases challenging campaign finance restrictions, including Citizens United) . The Tax Court decision that is the subject of this appeal can be found here.

Of course neither case may lead to any seismic changes to the relevant definitions of political activity, but they both bear watching.

Lloyd Mayer