Monday, January 28, 2019

Denying Tax-Exempt Status to Discriminatory Private Adoption Agencies

Allison M. Whelan (Covington & Burling, Washington D.C), Denying Tax-Exempt Status to Discriminatory Private Adoption Agencies, 8 UC Irvine L. Rev. 711 (2018):

This Article ... argues that the established public policy at issue here is the best interests of the child, which includes the importance of ensuring that children have safe, permanent homes. In light of this established public policy, which all three branches of the federal government have recognized and support, this Article ultimately argues that, consistent with the holding in Bob Jones, private adoption agencies that refuse to facilitate adoptions by same-sex parents, thereby narrowing the pool of qualified prospective parents and reducing the number of children who are adopted, act contrary to the established public policy of acting in the best interests of the child.

This Article proceeds in five Parts. Part I first provides general information about the child welfare system, adoption, private adoption agencies, and the “best interests of the child” standard. Part II describes the emergence of state laws that allow private agencies to refuse to facilitate adoption by same-sex couples. Part III provides an overview of federal income tax exemptions and then summarizes the Supreme Court’s decision in Bob Jones University v. United States. Part IV applies the analysis and holdings of Bob Jones to private adoption agencies that discriminate against same-sex couples, and ultimately argues that such policies are contrary to the established public policy of the best interests of the child. As a result, this Article argues that the IRS should conclude that these agencies do not qualify for exemption from federal income tax. Part V concludes by offering a potential compromise and additional policies the government should consider.

(Hat tip:  TaxProfBlog )

Nicholas Mirkay

https://lawprofessors.typepad.com/nonprofit/2019/01/denying-tax-exempt-status-to-discriminatory-private-adoption-agencies.html

Federal – Executive, Federal – Judicial, Publications – Articles, Religion | Permalink

Comments

This article provides only a flimsy explanation of the Bob Jones decision and related tax policy considerations. For fuller background on the decision, underlying charitable trust and tax considerations, and key distinguishing elements including the key point that the Bob Jones decision is truly an outlier tax decision, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3104688 - "Why Religious Organizations Shouldn't Lose Tax-Exempt Status, Post-Obergefell."

Posted by: Sally Wagenmaker | Jan 29, 2019 6:59:28 AM

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