Friday, November 9, 2018
The Internal Revenue Service, Department of Labor, and Department of Health and Human Services issued final regulations on November 7 pertaining to the exemptions based on sincerely held religious beliefs from the Affordable Care Act's requirement that certain entities provide coverage for contraceptive services. Here is the summary:
The primary purpose of this rule is to finalize, with changes in response to public comments, the interim final regulations with requests for comments (IFCs) published in the Federal Register on October 13, 2017 (82 FR 47792), “Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act” (the Religious IFC). The rules are necessary to expand the protections for the sincerely held religious objections of certain entities and individuals. The rules, thus, minimize the burdens imposed on their exercise of religious beliefs, with regard to the discretionary requirement that health plans cover certain contraceptive services with no cost-sharing, a requirement that was created by HHS through guidance promulgated by the Health Resources and Services Administration (HRSA) (hereinafter “Guidelines”), pursuant to authority granted by the ACA in section 2713(a)(4) of the Public Health Service Act. In addition, the rules maintain a previously created accommodation process that permits entities with certain religious objections voluntarily to continue to object while the persons covered in their plans receive contraceptive coverage or payments arranged by their health insurance issuers or third party administrators. The rules do not remove the contraceptive coverage requirement generally from HRSA's Guidelines. The changes being finalized to these rules will ensure that proper respect is afforded to sincerely held religious objections in rules governing this area of health insurance and coverage, with minimal impact on HRSA's decision to otherwise require contraceptive coverage.
The final regulations are about 95 pages (single spaced). Here is some of what the preamble says about nonprofit organizations:
F. Nonprofit Organizations (45 CFR 147.132(a)(1)(i)(B))
The exemption under previous regulations did not encompass nonprofit religious organizations beyond one that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Code. The Religious IFC expanded the exemption to include plans sponsored by any other “nonprofit organization,” §147.132(a)(1)(i)(B), if it has the requisite religious objection under §147.132(a)(2) (see §147.132(a)(1)(i) introductory text). The Religious IFC also specified in §147.132(a)(1)(i)(A), as under the prior exemption, that the exemption covers “a group health plan established or maintained by … [a] church, the integrated auxiliary of a church, a convention or association of churches, or a religious order.” (Hereinafter “houses of worship and integrated auxiliaries.”) These rules finalize, without change, the text of §147.132(a)(1)(i)(A) and (B). The Departments received comments in support of, and in opposition to, this expansion. Some commenters supported the expansion of the exemptions beyond houses of worship and integrated auxiliaries to other nonprofit organizations with religious objections (referred to herein as “religious nonprofit” organizations, groups or employers). They said that religious belief and exercise in American law has not been limited to worship, that religious people engage in service and social engagement as part of their religious exercise, and, therefore, that the Departments should respect the religiosity of nonprofit groups even when they are not houses of worship and integrated auxiliaries. Some public commenters and litigants have indicated that various religious nonprofit groups possess deep religious commitments even if they are not houses of worship or their integrated auxiliaries. Other commenters did not support the expansion of exemptions to nonprofit organizations. Some of them described churches as having a special status that should not be extended to religious nonprofit groups. Some others contended that women at nonprofit religious organizations may support or wish to use contraceptives and that if the exemptions are expanded, it would deprive all or most of the employees of various religious nonprofit organizations of contraceptive coverage.
After evaluating the comments, the Departments continue to believe that an expanded exemption is the appropriate administrative response to the substantial burdens on sincere religious beliefs imposed by the contraceptive Mandate, as well as to the litigation objecting to the same. We agree with the comments that religious exercise in this country has long been understood to encompass actions outside of houses of worship and their integrated auxiliaries. The Departments' previous assertion that the exemptions were intended to respect a certain sphere of church autonomy (80 FR 41325) is not, in itself, grounds to refuse to extend the exemptions to other nonprofit entities with religious objections. Respect for churches does not preclude respect for other religious entities. Among religious nonprofit organizations, the Departments no longer adhere to our previous assertion that “[h]ouses of worship and their integrated auxiliaries that object to contraceptive coverage onreligious grounds are more likely than other employers to employ people of the same faith who share the same objection.” (78 FR 39874.) It is not clear to the Departments that the percentage of women who work at churches that oppose contraception, but who support contraception, is lower than the percentage of woman who work at nonprofit religious organizations that oppose contraception on religious grounds, but who support contraception. In addition, public comments and litigation reflect that many nonprofit religious organizations publicly describe their religiosity. Government records and those groups' websites also often reflect those groups' religious character. If a person who desires contraceptive coverage works at a nonprofit religious organization, the Departments believe it is sufficiently likely that the person would know, or would know to ask, whether the organization offers such coverage. The Departments are not aware of federal laws that would require a nonprofit religious organization that opposes contraceptive coverage to hire a person who the organization knows disagrees with the organization's view on contraceptive coverage. Instead, nonprofit organizations generally have access to a First Amendment right of expressive association and religious free exercise to choose to hire persons (or, in the case of students, to admit them) based on whether they share, or at least will be respectful of, their beliefs. In addition, it is not at all clear to the Departments that expanding the exemptions would, as some commenters asserted, remove contraceptive coverage from employees of many large religious nonprofit organizations. Many large religious nonprofit employers, including but not limited to some Catholic hospitals, notified the Department under the last Administration that they had opted into the accommodation and expressed no objections to doing so. We also received public comments from organizations of similar nonprofit employers indicating that the accommodation satisfied their religious objections. These final rules leave the accommodation in place as an optional process. Thus, it is not clear to the Departments that all or most of such large nonprofit employers will choose to use the expanded exemption instead of the accommodation. If they continue to use the accommodation, their insurers or third party administrators would continue to be required to provide contraceptive coverage to the plan sponsors' employees through such accommodation. Given the sincerely held religious beliefs of many nonprofit religious organizations, some commenters also contended that continuing to impose the contraceptive Mandate on certain nonprofit religious objectors might also undermine the Government's broader interests in ensuring health coverage by causing some entities to stop providing health coverage entirely. Although the Departments do not know the extent to which that effect would result from not extending exemptions, we wish to avoid that potential obstacle to the general expansion of health coverage.
Thursday, November 8, 2018
I had the pleasure of speaking to a reporter this morning. He wanted to know if the picture above, a sign posted on the front lawn of the Grace of God Church in New Port Richey, Florida on election day violated the 501(c)(3) prohibition against campaign intervention. The Church, by the way, was also a polling place so the Pastor who placed the sign was careful that it was not within 100 feet of the church, proper. Still, it was on the Church ground, posted on election day even, and the Pastor told the reporter that if he changed the mind of at least one voter, he would be satisfied. The sign was also posted, and then removed after voter outcry, from the Church' Facebook page.
The reporter and I spoke by phone as he told me where to look online for a picture of the sign. As I pulled it up, I couldn't help howling in laughter. We talked a bit about the Service's general reluctance to enforce the prohibition against houses of worship because of obvious First Amendment concerns but I concluded that this is probably the easiest case since Branch Ministries took out a full page advertisement in USA Today (I wish I had a picture of that advertisement) exhorting Christians not to vote for Bill Clinton. I allowed that when Pastors preach about particular issues on any given Sunday (farther in time from election day the better) and perhaps even condemn politicians who support or oppose positions implicating spiritual teachings, they can probably count on some degree of protection from the First Amendment. But the sign above is an easy case. The Pastor seems to know this now because in the aftermath of election day he has tried to explain that the sign conveys a purely spiritual message, a verbal tap dance that evoked another round of laughter from me. In a Tampa Bay Times article yesterday, the Pastor is quoted thusly:
Tuesday, November 6, 2018
It's appropriate on Election Day to provide some updates on recent FEC and IRS actions relating to political activity, as well as new about reduced NRA political spending and a CREW complaint against a politically active 501(c)(4).
On the election law/FEC side of things, in the wake of a federal District Court order vacating a disclosure regulation (and higher courts not staying the decision), the FEC has issued guidance providing that entities making independent expenditures (i.e., express advocacy not coordinated with a candidate or political party) after Sept. 18, 2018 must publicly disclosure the identities of donors who contributed more than $200 in the calendar year (in aggregate) if the contributions were received after August 4, 2018 and were made for the purpose of furthering any independent expenditure. For more details, see the published guidance. Coverage: Washington Post.
On the tax law/IRS side of things, the Chief Counsel to the IRS concluded that an Internal Revenue Code section 501(c)(4) social welfare organization that made admitted making expenditures in support of a candidate for elective public office was a "political party" under section 271 and so a taxpayer who made a loan to the 501(c)(4) that was not repaid was unable to take a worthless debt deduction under section 166. The taxpayer loaned money to the 501(c)(4) in one year, only to have the 501(c)(4) dissolve in the next year without repaying the loan. The 501(c)(4) reported on its annual information return that it was engaged in political campaign activity in connection with a certain candidate, which Chief Counsel held was sufficient to make the organization a "political party" within the meaning of section 271 (regardless of the organization's classification under any other Code section). Coverage: Thomson Reuters.
In other news about loans to 501(c)(4)s, Bloomberg reports that the NRA is facing a cash crunch that has led to both reduced political spending this election cycle and borrowing funds from numerous sources, including $5 million from its section 501(c)(3) charitable affiliate (at a presumably market interest rate of seven percent).
And in a complaint filed with the IRS, CREW asserts that section 501(c)(4) America's Renewable Future, Inc. failed to file annual information returns (Form 990) for 2015 and 2016 even though it filed such a return for 2014 and had extensive issue advocacy activities in both later years. This is only the latest CREW complaint along these lines, as it has previously filed such complaints against other 501(c)(4)s, including the American Policy Coalition and Freedom Frontier. Hat tip: EO Tax Journal.
Monday, November 5, 2018
The SALT/170 Proposed Regulations issued on August 27, 2018 had their day in the court of public opinion today – that being the public hearing held at 10:00 A.M. today at the IRS. I am still trying to find video or a transcript of the hearing (I will update the post with a link should I find one or if any kind reader passes one my way.)
If you aren’t familiar with these Regulations, they were described in this post (which includes many, many links to commentary by lots of smart people). An additional post highlights further commentary by Andy Grewal regarding the significant flaws in the Proposed Regulations (both posts by my co-blogger, Lloyd Mayer.)
Richard Rubin of the Wall Street Journal did live tweet the hearing (his Twitter feed can be found here, which you should follow anyway if you are tax type.) According to him, there were 24 speakers signed up, including an 8th grader talking about the benefits of private school. From Rubin's description, many of the speakers were specifically objecting to the treatment of state level education credit programs. In addition, it appears that 7,749 comments were received on the www.regulations.gov website.
Rubin noted that at the end of the hearings, Scott Dinwiddie of the IRS was quoted as saying, “We have our work cut out for us.” If you believe the underlying theory advanced by the IRS, then I’m not sure what work needs to be done, as they did take a pretty straightforward stance on it all. I’ll be curious to see what direction the final regs take…
UPDATE: Thanks to Mr. Linville in the comments, who provided a link for the hearing transcript, so please see below.
Thursday, November 1, 2018
The IRS recently released draft instructions for Form 990-T that provide some insights into how the Service is planning to apply new unrelated business income tax provisions 512(a)(6) (siloing of unrelated trades and businesses) and 512(a)(7) (taxation of costs incurred for certain fringe benefits). With respect to 512(a)(6), the instructions relate to the new Schedule M (not yet released), which organizations are instructed to use if they have reportable income from more than one unrelated trade or business. They are further instructed to follow the instructions for reporting a single trade or business provided for Parts I and II of the main form, and also to attach statements as necessary to replicate the information provided on Schedules A through K for each separately reported trade or business (see page 11 of the draft instructions). While not stated in the instructions, presumably tax-exempt organizations should rely upon IRS Notice 2018-67 to determine what constitutes a separate trade or business for these purposes, which we blogged about previously.
As for 512(a)(7), the instructions provide (on page 19) the following relating to Line 34 of the draft Form 990-T for 2018:
Line 34. Enter the amount paid or incurred for disallowed fringes (as defined in section 132(f)), or any parking facility used in connection with qualified parking (as defined in section 132(f)(5)(C)), for which a deduction is not allowable by reason of section 274. Do not include amounts directly connected with an unrelated trade or business which is regularly carried on.
The also provide the following (on page 5) for organizations only required to file Form 990-T because of 512(a)(7):
Organizations that are required to file Form 990-T only because they have UBTI in excess of $1,000 under section 512(a) (7) for expenses for certain qualified transportation fringe benefits must complete the following.
• The heading (above Part I) except C, E, H, and I;
• Part III and IV (complete only the relevant lines); and
• Signature area.
For all organizations, the instructions (on page 1) clarify that they only have to file a Form 990-T "[i]f the sum of gross income from a regularly conducted unrelated trade or business . . . and unrelated business taxable income under section 512(a)(7) attributable to expenses for certain qualified transportation fringe benefits is $1,000 or more."
Thursday, October 25, 2018
A recent Forbes article encapsulated the nearly 10-month discussion of how the Tax Cuts & Jobs Act of 2017 (TCJA) will affect charitable giving and thus the finances of nonprofit entities. Although the TCJA did not make major changes to the tax law regarding charitable contributions, the increase in the standard deduction is estimated to significantly reduce the number of households that itemize deductions. The article references the Tax Policy Center's forecast at the beginning of the year that the TCJA could reduce donations by approximately 5 percent, and reduce the number of households taking an itemized deduction for charitable contributions from 21 percent in 2017 to 8 percent in 2018. The article summarizes the concerns of various players in the nonprofit sector (organizations, researchers, government officials):
- The TCJA likely will accelerate a growing shift from low- and moderate-income contributors to a relatively small number of mega-donors, a trend that makes many in the non-profit sector very uncomfortable.
- That shift will create winners and losers among non-profits. Religious and social service agencies may see contributions drop while bigger colleges, hospitals, and high-end arts organizations are largely unscathed.
- The benefits of the charitable giving deduction may go well beyond its ability to reduce the after-tax cost of giving. The signal it sends—that charitable giving is a good thing—may be as important as the dollars donors save.
- There is a lot unknown about what motivates givers, especially younger donors.
Tuesday, October 23, 2018
As discussed in a previous post, the Treasury and IRS issued proposed regulations to address the attempts by states to create a way for their residents to get around the recently enacted cap on the state and local tax (SALT) deductions by facilitating charitable contributions that would qualify the donors for state tax credits. The proposed regulations would treat the state tax credits as return benefits, thereby requiring a reduction in any otherwise available charitable contribution deduction. Andy Grewal (Iowa), who has been at the center of this debate, has published another article on this topic in the Iowa Law Review Online (103 Iowa Law Review Online 75 (2018)) entitled The Proposed SALT Regulations May Be Doomed. Here is a description of the article:
The IRS recently followed through on its promise to address state strategies designed to avoid the new state & local tax deduction limits. Although programs adopted by blue states sparked the IRS’s interest, the proposed regulations address both blue and red state programs. This has, predictably, led to IRS criticism from all sides. But the IRS was right to step in here. Revenue and policy concerns easily justify administrative guidance on the state strategies.
Unfortunately, the proposed regulations suffer from some significant technical and conceptual flaws. Those flaws, if left unaddressed, may jeopardize the validity of any final regulations, especially as they apply to red state programs. This essay discusses the flaws in the proposed regulations and offers recommendations for improvement.
Friday, September 28, 2018
According to the Center for Responsive Politics, one emerging issue for both the 2018 midterm elections and the Kavanaugh confirmation battle is the flow of funds from so-called "dark money" groups - generally tax-exempt nonprofits that are not required to publicly disclose their donors. This issue has also been in the news recently because of both recent action by the IRS and a couple of significant court decisions.
In July the IRS issued Revenue Procedure 2018-38, which dropped the requirement that section 501(c) organizations report the names and addresses of substantial contributors to the IRS. This reporting had been done on Schedule B to the annual Form 990, 990-EZ, or 990-PF, with the information only available to the IRS and not subject to public disclosure (unlike the rest of Form 990/990-EZ/990-PF). This change is effective for tax years ending on or after December 31, 2018. The reporting requirement still applies to section 501(c)(3) organizations, however, as for those organizations there is a statutory requirement (found in section 6033(b)(5)) of such reporting. The stated reason for the change was:
The IRS does not need personally identifiable information of donors to be reported on Schedule B of Form 990 or Form 990-EZ in order for it to carry out its responsibilities. The requirement to report such information increases compliance costs for some private parties, consumes IRS resources in connection with the redaction of such information, and poses a risk of inadvertent disclosure of information that is not open to public inspection.
Some commentators saw a political motive in the change, however, as it relieves politically active "dark money" nonprofits from having to disclose their substantial donors to the IRS. Coverage: NPR; Politico; ProPublica. And Montana Governor Steve Bullock sued to challenge the change, asserting that Treasury failed to follow required processes under the Administrative Procedure Act. Coverage: N.Y. Times.
Supporters of donor disclosure, particularly for politically active groups, were more successful in the courtroom recently. California Attorney General Xavier Becerra successfully appealed to the Ninth Circuit the granting of as applied challenges by the Thomas More Law Center and the Koch brothers-affiliated Americans for Prosperity Foundation that had exempted the Center and APF from the state requirement to provide an unredacted copy of its Schedule B to the Attorney General's office (but not for public disclosure). The Ninth Circuit in 2015 had rejected a facial challenge to this requirement. Of course with the above change by the IRS, only section 501(c)(3) organizations (such as the Center and APF) will have Schedule Bs to submit. Coverage: ABA Journal (collecting links to coverage by major news outlets).
Possibly of even greater consequence, the U.S. District Court in the District of Columbia in CREW v. FEC vacated a longstanding FEC regulation that had permitted organizations that are not political committee but make independent expenditures (defined as expenditures to pay for communications that expressly advocate the election or defeat of a federal candidate and which are not done in coordination with any federal candidate or political party) to avoid disclosure of their significant donors to the FEC as long as the donors had not earmarked their donation to support a particular, reported independent expenditure. The court reasoned that the relevant statute instead required such disclosure if the funds provided were for the purpose of supporting independent expenditures generally. The court stayed the vacator for 45 days from the date of the decision (August 3, 2018) to give the FEC time to issue an new, interim regulations, although it is far from clear the FEC can or will do so in that time period. Attempts to obtain a further stay of the District Court's order from the Supreme Court failed, however, leaving it somewhat uncertain what rules would apply to groups making such independent expenditure in the run-up to the 2018 general election. Coverage: The Atlantic; Politico. According to Election Law expert Rick Hasen, the ruling may not have as dramatic an effect as some seem to think, however.
Wednesday, September 26, 2018
CORRECTION: The original post said Form 4720 draft Schedules N and O were not yet available, which was incorrect. They are available, on the same page as Schedule M, through the link initially provided. The post has been corrected to reflect this fact.
In its August 2018 Update for the 2017-18 Priority Guidance Plan, Treasury and the IRS identified only two exempt organization specific items from the Tax Cuts and Jobs Act (TCJA) as needing guidance this fiscal year: "computation of unrelated business taxable income for separate trades or businesses under new § 512(a)(6)" and "certain issues relating to the excise tax on excess remuneration paid by 'applicable tax-exempt organizations' under § 4960." This was in addition to the already issued Notice relating to the calculation of net investment income for purposes of the new § 4968 excise tax applicable to certain private colleges and universities, which I previously blogged about, as well as the interaction of charitable contributions and state and local tax credits (discussed earlier this week) and a number of continuing projects unrelated to the TCJA.
True to their word, Treasury and the IRS have now issued a Notice providing initial guidance under § 512(a)(6) and draft instructions for reporting both excess compensation under § 4960 and net investment under § 4968 on IRS Form 4720 (draft for 2018, but not including the relevant schedules yet). Perhaps the most interesting (and reassuring) aspect of the Notice is that it allows tax-exempt organizations with unrelated trades or businesses to use "a reasonable, good-faith interpretation" of §§ 511-514 "considering all of the facts and circumstances" to determine if they have multiple such trades or businesses that would therefore require calculating net unrelated trade or business income for each such trade or business under § 512(a)(6). What at least requires further consideration is the suggestion that Treasury and the IRS might use the North American Industry Classification System (NAICS) 6-digit codes to determine what constitutes a separate trade or business. That is because while exempt organizations have in theory used this system to classify all of their revenue streams, including from unrelated trades or businesses, on their annual Forms 990 for many years, up until now it has not had much if any tax significance and so the NAICS' fit with actual exempt organizations activities has not been rigorously tested. For example, I noticed that my home institution's latest Form 990 included a significant amount of unrelated trade or business income under code 900099, which is not an actually NAICS code but instead the number the Form 990 instructions say to use if none of the NAICS six-digit codes "accurately describe the activity." This raises the question of whether many other tax-exempt organizations will have similar difficulty using the NAICS codes to determine their separate unrelated trades or businesses. The Notice also addresses a host of other issues, and wisely seeks comments before the issuance of any proposed regulations.
The draft Form 4720 instructions provide details for reporting excess compensation (draft Schedule N, on same page as Schedules M and O) and net investment income (draft Schedule O, on same page as Schedules M and N). One issue they do not appear to address, however, is whether the Form 4720 generally and these schedules specifically are subject to public disclosure (current law appears to be that the Form 4720 is only subject to public disclosure for private foundations). So while the public will know these schedules have been submitted (because of related questions on the publicly available Form 990), it is not clear the public will have access to the detailed information required on the Form 4720 schedules. (Hat tip to EY for identifying this issue.)
Monday, September 24, 2018
Charitable Contributions, State Tax Credits, and Return Benefits: IRS Proposed Regs, IRS Announcement, and Much Commentary
The Treasury and IRS proposed regulations to address the attempts by states to create a way for their residents to get around the cap on the state and local tax (SALT) deductions by facilitating charitable contributions that would qualify the donors for state tax credits. The proposed regulations would treat the state tax credits as return benefits, thereby requiring a reduction in any otherwise available charitable contribution deduction. The proposed regaultions raise a range of issues, including:
- whether this approach should apply more broadly to all third-party-provide benefits not just state tax credits (see comments of Lawrence Zelenak (Duke); hat tip: TaxProf Blog);
- whether a substance-over-form approach would have been better (see a pre-proposed regs article by Joseph Bankman (UCLA) and Darien Shanske (UC Davis); Zelenak also flagged this issue);
- how to treat the state tax credits if they are later sold or expire (see comments by Andy Grewal (Iowa));
- administrative concerns (see a pre-proposed regs article by David Gamage (Indiana University)), which are partially addressed by a de minimis exception for both state tax credits of up to 15% and state tax deductions resulting from charitable contributions; and
- political issues, in that the proposed regulations do not differentiate the recent SALT cap workaround efforts from the 100 or more pre-tax legislation state programs that provided state tax credits in exchange for contributions to certain types of charities (see a pre-proposed regs State Tax Notes article (subscription required) by eight tax academics that includes an appendix listing those existing programs).
Earlier articles raising these and other issues include: Joseph Bankman et al., Caveat IRS: Problems with Abandoning the Full Deduction Rule, State Tax Notes (2018); Roger Colinvaux (Catholic), Failed Charity: Taking State Tax Benefits Into Account for Purposes of the Charitable Deduction, 66 Buffalo Law Review 779 (2018); and Andy Grewal, The Charitable Contribution Strategy: An Ineffective Salt Substitute, Virginia Tax Review (2018).
An added wrinkle is that shortly after the issuance of the proposed regulations the IRS issued an announcement stating that "[b]usiness taxpayers who make business-related payments to charities or government entities for which the taxpayers receive state or local tax credits can generally deduct the payments as business expenses." While meant as a clarification, this announcement may not in fact have clarified very much or may indeed have created a significant loophole, as Andy Grewal has noted.
Friday, July 6, 2018
The news cycle may have moved on from the New York Attorney General's lengthy Petition against the Donald J. Trump Foundation and Donald, Donald Jr., Invanka, and Eric Trump, but the legal cycle continues. It is therefore worth considering what is the most important question that Petition raises - did now President Trump break any criminal laws through his Foundation?
First, a mea culpa is owed. When I first, very quickly (and in the Newark airport on my smart phone, which is not a great way to review legal documents), read the Petition and related materials, I missed the not-so-subtle hints that the AG included suggesting that the answer to this question is yes. As way of explanation but not excuse, this was in part because I did not then know that she generally lacka authority to bring criminal charges herself. But more importantly, in my quick read I missed both the occasional "willful" or "willful and knowing" language - particularly with respect to the alleged use of the Foundation to benefit his campaign - and, most damning, the copying of officials at the U.S. Department of Justice Criminal Division's Public Integrity Section on the FEC referral letter. So I apologize for anyone I talked to in the hours after the petition became public for not catching those hints.
But of course the fact that New York AG thinks they may have been one or more violations of criminal law does not necessarily make it so, even assuming the accuracy of the facts she alleges. There has already been a debate among tax scholars regarding whether those facts justify referral for a criminal investigation by the IRS - see Phil Hackney in the NY Times (yes) and Brian Galle in Medium (maybe, but probably not). I lean more toward Brian's side of this debate, with the kicker being that all of the funds distributed by the Foundation went to charities even if those contributions actually benefitted Mr. Trump, his business interests, or his campaign (with the exception of one $25,000 political organization donation in 2013, which plausibly was an inadvertent error and the false reporting of which could not be pinned on Mr. Trump by the AG). People who have been prosecuted (successfully) for using charitable assets for their own benefit, including former Representatives Corrinne Brown, Chakah Fatah, and Steve Stockman, have usually actually spent charitable funds on personal expenses or given it to their businesses or campaigns. And criminal prosecutions for false statements on annual information returns (the Form 990, or here the Form 990-PF) have tended to focus on not reporting material support for terrorist organizations and similar matters.
As the AG's copying of the DOJ Criminal Division indicates, the alleged illegal in-kind donation by the Foundation to the Trump campaign in violation of federal election law is probably the more likely candidate for a criminal charge. But election law experts contacted by N.Y. Times reporter Kenneth Vogel could not agree on whether any federal investigators would pursue such a charge, even assuming impartial consideration by career DOJ attorneys. And as noted in that article, ignorance might be a good defense here, "willful and knowing" language notwithstanding.
Perhaps the most intriguing suggestion to date is the one by David Cay Johnston in the N.Y. Times two days ago. He suggested that either the bringing of criminal charges - state or federal - or even civil tax charges - again, state or federal - against Mr. Trump, including ones based on the NY AG's allegations, could force the public disclosure of Mr. Trump's personal income tax returns (remember those?). Given the range of government officials who could pursue some such charges, it will be interesting to see if any of them take up this suggestion.
Thursday, July 5, 2018
In its 2018 Report of Recommendations, the Exempt Organizations Subgroup of the Advisory Committee on Tax Exempt and Government Entities (ACT) reiterated its strong support for e-filing of Form 990 series returns, which the 2015 ACT report also had supported. As detailed in that earlier report, increased e-filing would increase the ability of the IRS to review such returns, improve the completeness and accuracy of such returns, and provide greater public access to return data. While there are security and technology issues raised by e-filing as detailed in the 2018 report, these exist for the currently e-filed returns and appear to be manageable.
As ACT recognizes, mandatory, universal e-filing would require legislative action. While legislative proposals along these lines have been around for a number of years, including a bill introduced in the current session of Congress, it is far from clear that such legislation will become law. In the absence of legislation, the 2018 report urges the IRS to pursue various other measures, including eliminating the $10 million threshold for requiring e-filing and so require all exempt organizations that are required to file at least 250 returns (e.g., Forms W-2, 1099-Misc) to e-file. More controversially, the report suggests that Treasury should consider either exempting e-filers from having to file Schedule B (identifying relatively large donors) or eliminating that schedule altogether since it creates concern about public release of such information (the schedule is not subject to public disclosure under current law, but there have been rare instances when it has become public).
Tuesday, July 3, 2018
- In Revenue Procedure 2018-32, the IRS replaced previous Revenue Procedures 81-6, 81-7, and 2011-33 relating to grantor and contributor reliance on IRS databases of organizations eligible to receive tax-deductible contributions under Internal Revenue Code section 170. It also updated the rules from that previous guidance to reflect the creation of the new Tax Exempt Organization Search function on the IRS website and the elimination of the public support advance ruling process.
- In Revenue Ruling 2018-14, the IRS obsoleted Revenue Ruling 68-59 relating to excluding the unrelated business taxable income $1,000 specific deduction from net operating loss computations because the Tax Reform Act of 1969 (!) had amended section 512(b)(12) to disallow this deduction from that computation. Better late than never, I guess (plus maybe this counts as repealing a regulation?).
- In Revenue Ruling 2018-15, the IRS obsoleted five revenue rulings relating to the public support advance ruling process in light of the adoption of final regulations in 2011 eliminating that process. Organizations applying for recognition of exemption under section 501(c)(3) and to be classified as not a private foundation because of public support can now obtain the latter classification by showing that they reasonably expect to receive the requisite public support during their first five years of existence.
In their first piece of official guidance for tax-exempt organizations in the wake of the 2017 tax legislation, the Treasury and IRS in Notice 2018-55 granted a favorable (and, in my view, correct) interpretation of new Internal Revenue Code section 4968 that imposes a 1.4 percent excise tax on private college and university investment income. Following Congress' direction in the new statute to apply rules "similar to the rules of section 4940(c)" when determining the amount of investment income subject to tax, the Treasury and the IRS followed section 4940(c)(4) and the regulations implementing that provision by effectively excluding pre-2018 appreciation from the new tax. They did this by stating they will issue proposed regulations that attribute to property held as of December 31, 2017 a basis of no less than the fair market value of such property on that date (subject to later required adjustments) for purposes of determining the gain on the disposition of such property. Normal basis rules would apply for purposes of determining loss from the disposition of such property. Interestingly, the Joint Committee on Taxation does not appear to have taken the possibility of such an interpretation into account in its estimated budget effects for this provision, in that it projected a flat $0.2 billion revenue increase from this tax for the ten years. (Unless JCT assumed that the tax revenues would be $0.2 billion in 2018 and all subsequent years even without any pre-2018 appreciation subject to tax, which seems unlikely.)
Tuesday, May 1, 2018
The IRS Tax-Exempt/Government Entities (TE/GE) Division released its compilation of Fiscal Year 2017 Accomplishments shortly before the IRS released the broader 2017 Data Book. Together these two documents provided a number of significant statistics regarding tax-exempt organizations related IRS activity for October 1, 2016 to September 30, 2017, including:
- There are 1.65 million tax-exempt organizations under Code section 501(c), including 1.29 million 501(c)(3)s. See Data Book Table 25.
- The IRS completed 6,101 examinations, a plurality of which (2,332) related to filing, organizational, and operational issues but which also involved employment tax issues (1,905), unrelated business income (602), and inurement/private benefit (109).
- Providing a different breakdown, the Data Book (Table 13) reports 2,375 Forms 990, 990-EZ, and 990-N examined, 608 Form 990-Ts examined, and 302 Forms 990-PF, 1041-A (relating to trust accumulation of charitable amounts), 1120-POL, and 5227 (relating to split-interest trusts) examined.
- While not completely clear from the Accomplishments document, it appears that 1,400 of these examinations were a statistical sampling of organizations that had had their applications for recognition of exemption approved through a streamlined process (with 43% resulting in changes, and 14 organizations revoked or terminated).
- It also appears another 565 of these examinations were part of a statistically valid random sample of Form 1023-EZ filers (with 51% resulting in organizing documents amendments or written advisories and five organizations revoked or terminated).
- The IRS revoked the tax-exempt status of 63 organizations, the majority (36) for not operating for an exempt purpose.
- The IRS received 95,177 applications for recognition of exemption, approving 86,669 applications, denying 68 applications, and closing 6,238 applications for other reasons such as withdrawal by the applicant or missing required information; most (85,553) of the closed applications were under Code section 501(c)(3), as were most (42) of the denials and other resolutions (5,812). See Data Book Table 24a. The IRS also received 2,182 Notices of Intent to Operate Under Section 501(c)(4), acknowledged 1,908 such notices and rejected 474 such notices (according to the Accomplishments report, most commonly for "failure to pay the user fee and unnecessary notification (e.g. the organizations were already exempt)"). See Data Book Table 24b.
- The IRS received 1.5 million tax-exempt organization returns, including primarily Form 990 series information returns (so not including the Form 990-T unrelated business income tax return) but also including Form 4720 (excise tax return), Form 5227 (split-interest trust information return), and Form 8872 (political organization report). See Data Book Table 2.
- The IRS collected $882 million in tax-exempt organization unrelated business income tax. See Data Book Table 1.
- The IRS reported 114 technical activities, all relating to Congressional correspondence. See Data Book Table 22.
There is a lot of urgently needed guidance relating to tax-exempt organizations. Fortunately there are plenty of opportunities for organizations and their representatives to tell the IRS and Treasury what is needed, including by submitting recommendations for the 2018-2019 Priority Guidance Plan as requested in Notice 2018-43. Here is an overview of the most pressing issues:
Late last year the IRS released Notice 2017-73, requesting comments on issues relating to the issuance of regulations under Code section 4967. Those comments are now flowing in, including from the ABA Section of Taxation, the Council on Foundations, Fidelity Charitable, and the New York Bar Association Tax Section. Issues that were of particular interest to the IRS are the treatment of recommended distributions from a DAF to support a charitable event or fundraiser, or to pay membership fees, especially when benefits received in return by a donor advisor are more than incidental, the treatment of recommended distributions that satisfy a pledge by the donor advisor, and also how distributions from a DAF interact with the public support tests for a recipient public charity.
Many others are exploring in detail the uncertain application of tax reform provisions relating to tax-exempt organizations. See, for example, the Exempt Organizations Committee schedule for the ABA Section of Taxation May Meeting, and the numerous summaries of relevant provisions prepared by both accounting firms (e.g., KPMG) and law firms (e.g., Ropes & Gray). That said, the most pressing issues appear to relate to the "basketing" of unrelated trades or businesses such that the losses from one such trade or business cannot offset the income of another such trade or business (Code section 512(a)(6)), the UBIT exposure of certain fringe benefits (Code section 512(a)(7)), the new excise tax on $1 million+ compensation paid by tax-exempt organizations (Code section 4960), and the new excise tax on the net investment income of private colleges and universities with relatively large endowments (Code section 4968).
Not that the lack of guidance has prevented speculation about possible issues and workarounds. For example, one workaround for the new UBIT basketing rule might be to place all unrelated trades or businesses in a single taxable subsidiary (perhaps further divided into single-member limited liability companies owned by the subsidiary for liability siloing purposes). And there has already been speculation regarding whether the excise tax on compensation applies to compensation paid by public colleges and universities as well.
Church Tax Audits
The still pending nature of proposed regulations (issued 8/5/09) regarding what specific official within the IRS has the authority to begin a church tax inquiry under Code section 7611 has now arisen with a vengeance. In United States v. Bible Study Time, Inc., a federal district court recently concluded that such an inquiry (and therefore the subsequent church tax examination) had not been properly initiated because it was not approved by a sufficiently highly ranked IRS official. The decision also throws into doubt whether the proposed regulations are correct in giving this authority to the Director, Exempt Organizations, as the court found that position is not of sufficient rank under the relevant provision of section 7611.
And There's More
The February 2018 Update to the 2017-2018 Priority Guidance Plan included not only many of the above issues but also the following:
- Charitable contributions of inventory (Code section 170(e)(3)) as part of reducing regulatory burdens.
- Final regulations under Code section 170 relating to substantiation and reporting requirements for charitable contributions (proposed regulations issued 8/7/08).
- Updating revenue procedures on grantor and contributor reliance under Code sections 170 and 509, including updating Revenue Procedure 2011-33 (relating to EO Select Check).
- Final regulations on Code section 509(a)(3) supporting organizations (proposed regs issued 2/19/16).
- Final regulations under Code section 512 relating to computations for Code section 501(c)(9) voluntary employees' beneficiary associations (proposed regs issued 2/6/14).
- Also under Code section 512, allocation of expenses relating to dual use facilities.
- Final regulations on the fractions rule under Code section 514(c)(9)(E).
- Investments by private foundations in partnerships in which disqualified persons are also partners under Code section 4941 (relating to self-dealing).
- Updating Revenue Procedure 92-94, relating to grants by private foundations to foreign grantees under Code sections 4942 and 4945.
- Final regulations relating to disclosure of information to state officials under Code section 6104(c) (proposed regulations issued 3/15/11).
- Unspecified guidance relating to church plans.
And I am ignoring planned or needed guidance on issues that have a more indirect effect on tax-exempt organizations, such as guidance relating to tax-exempt bonds. Things should be busy at Treasury - even with the new IRS Commissioner (Charles Rettig) and new IRS Chief Counsel (Michael Desmond) nominees still awaiting Senate confirmation.
Friday, February 23, 2018
Successful Applicant for Recognition of Exemption Fails in Claim for Administrative and Litigation Costs
The U.S. Tax Court issued an opinion this week denying a motion for reasonable litigation or administrative costs arising out of the filing of an application for recognition of exemption under section 501(c)(3) (Form 1023) and a subsequent successful petition for declaratory judgment. The motion arose out of a relatively common situation. Friends of the Benedictines in the Holy Land, Inc. filed a Form 1023 in July 2012. After more than a year had passed without any IRS action, and after an inquiry to the IRS resulted in a response that said there was no date certain by which a ruling or determination would be issued, the organization filed a petition for a declaratory judgement that it was exempt under section 501(a). Two days later the IRS issued a favorable determination letter, and after some negotiation the IRS, the organization, and the court resolved the declaratory judgment action through a stipulated decision. Subsequently, the organization sought an award of its reasonable litigation and administrative costs pursuant to section 7430 and Rules 230 and 231.
Given that the organization had prevailed in the underlying dispute, why did its motion for these costs fail? With respect to the administrative costs, while the Tax Court concluded the application process was an administrative proceeding and so could give rise to an award of administrative costs, it found that the organization had failed to provide any evidence of those costs and so had failed its burden of proof in this regard. With respect to the litigation costs, the Tax Court held that the Commissioner's prompt concession of the case - before the filing of an answer contesting the organization's claims - meant that the Commissioner's position in the litigation (that the organization did in fact qualify for exemption) was substantially justified and so there was no basis for awarding such costs. In doing so, the Tax Court rejected the approach taken by some other federal courts what had awarded litigation costs in similar situations, albeit not in the application for recognition of exemption context.
Wednesday, February 21, 2018
Exemption Application Changes: IRS Removes Need to Reapply for Exemption for Some Changes in Legal Form & Revises Application Forms, Fees
The IRS has recently made a number of significant changes to the process for applying for recognition of exemption under Internal Revenue Code section 501. Probably the most important is found in Revenue Procedure 2018-15, which provides that the IRS will not require a new exemption application from a domestic section 501(c) organization that merely changes its legal form or legal place of organization in many situations. This welcome change obsoletes Revenue Rulings 67-390 and 77-469, which generally required a new application under these circumstances. As detailed in the new Revenue Procedure, changes that generally will no longer require a new exemption application assuming no change in purposes include:
- an unincorporated nonprofit organization becoming incorporated,
- a corporation formed under the laws of one state reincorporating under the laws of a different state,
- a corporation formed under the laws of one state filing articles of domestication under the laws of a different state, and
- mergers of two corporations.
Changes that generally will still require a new exemption application include:
- a charitable trust becoming incorporated,
- any change where the surviving organization is a disregarded entity, limited liability company, partnership, or foreign business entity,
- any change where the surviving organization obtains a new employer identification number, and
- any change involving a foreign entity becoming a domestic entity.
While not addressed specifically in the Revenue Procedure, it appears that if a corporation becomes a charitable trust a new exemption application would be required because a charitable trust is not considered a business entity for federal tax purposes.
The IRS has also:
- revised Form 1023 (application for recognition of exemption under section 501(c)(3) of the Internal Revenue Code), although the changes appear relatively minor
- revised Form 1023-EZ (streamlined application for recognition of exemption under section 501(c)(3) of the Internal Revenue Code) as explained here by the IRS, including adding a request for a brief description of the organization's mission or most significant activities
- finalized new Form 1024-A (application for recognition of exemption under section 501(c)(4) of the internal revenue code)
- in Revenue Procedure 2018-5, changed the user fee for all exemption applications other than Form 1023-EZ to $600, updated the procedures for requesting relief to limit retroactive revocation of modification of a determination letter, and added organizations applying for retroactive reinstatement after being automatically revoked for failure to file required annual information returns to the list of entities ineligible to submit Form 1023-EZ
Sunday, November 19, 2017
LDF trusts raise questions as to tax treatment of the trust, whether the trust can take advantage of special rules applicable to political organizations, whether contributions to the LFD trusts can be deemed gifts excluded from the official’s income, whether donors to LDF trusts are subject to gift tax liability, whether the government official must report amounts distributed from the fund for legal expenses as income, and the extent to which deductions are available to the government officials for amounts expended from the trust on his or her behalf.
Saturday, November 18, 2017
First, two months ago the U.S. Department of Justice announced that it would not reopen the criminal investigation of former IRS Exempt Organizations Director Lois Lerner, to howls of fury from her critics in Congress.
Then the Treasury Inspector General for Tax Administration released a new report that found a number of left-leaning organizations that had applied for section tax-exempt status had also had their applications subject to additional review and/or been subject to unnecessary questions. The report did not undermine TIGTA's previous finding that the IRS had used inappropriate criteria to identify applications for additional scrutiny, or that many right-leaning organizations had been selected as a result of that criteria, but it muddied the waters regarding how politically biased the application process actually was and provided further support for the argument that the problems with that process likely reflected incompetence more than malevolent intent. (More coverage: Washington Post.)
Late last month the U.S. Department of Justice announced the settlement of two pending lawsuits relating to the controversy, including the one class action suit. According to a report by a CNN, the settlements did not involve the payment of any monetary damages but included an apology from the IRS. The NY Times later reported, however, that one of the settlements involved a seven-figure payment, although the exact amount and other details were not available. The two settled cases (assuming court approval of the settlement in the class action case) are NorCal Tea Party Patriots v. IRS (the class action) and Linchpins of Liberty v. United States. (More coverage: Fox News, Washington Post.) By my count there is still a pending lawsuit brought by True the Vote against the IRS, as well as Freedom Path's lawsuit against the IRS (set for trial in summer 2018), so this settlement is not quite the end of all litigation.
Finally, earlier this month IRS Commissioner John A. Koskinen reached the end of his 5-year term. Despite calls for his removal or even impeachment because of the IRS' handling of the controversy's investigation, President Trump chose not to ask him to step down and Congress did not take any steps to begin the impeachment process. The Administration has not nominated his successor, with Assistant Secretary for Tax Policy David Kautter currently serving as interim IRS Commissioner. Coverage: N.Y. Times.