Thursday, January 31, 2019
Partnership Not Entitled to Charitable Contribution Deduction for Two of Three Easements, Conservation Purpose Not Protected in Perpetuity
In Pine Mountain Preserve, LLLP v. Commisioner, the Tax Court's 116 page opinion determined that (cribbing from CCH):
A partnership was not entitled to charitable contributions deductions for two easement deeds because the conservation purpose of their donated easement was not protected in perpetuity and, consequently, was not a qualiﬁed conservation contribution. The IRS argued that the easements did not protect conservation purposes in perpetuity because the easement deeds permitted the property to be used in ways inconsistent with the conservation purposes of the easements. Further, the two easements deeds did not restrict a speciﬁc, identiﬁable piece of real property because they allowed supposedly conserved land to be taken back and used for residential development. Because neither easement constituted a restriction (granted in perpetuity) on the use which may be made of the real property, neither easement constituted a "qualiﬁed real property interest" that could give rise to a charitable contribution deduction under Code Sec. 170(h)(1)(A). Therefore, the partnership was not entitled to a deduction for conservation easements for the two tax years at issue. However, the easement deed for the third tax year did not contain a reserved-right provision allowing the landowner to construct houses. Although the third easement deed allowed the landowner to use the land in various other ways, these uses were consistent with the conservation purposes of the easement. Further, the third easement covered a speciﬁc, identiﬁable piece of real property, was "granted in perpetuity" under Code Sec. 170(h)(2)(C) and was made "exclusively for conservation purposes." Moreover, the inclusion in the easement of a provision allowing amendments, provided that they were "not inconsistent with the conservation purposes of the donation," did not prevent that easement from satisfying the granted-in-perpetuity requirement of Code Sec. 170(h)(2)(C). Therefore, the partnership could get a deduction for the donation of the easement for the third tax year at issue.
Darryll K. Jones
Monday, January 28, 2019
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 )
Conservative Organization Denied 501(c)(4) Status Lacks Standing to Challenge Revenue Ruling 2004-6, According to Fifth Circuit
In 2011, Freedom Path, a would-be social welfare organization sought exempt status under 501(c)(4). In 2013, the Service notified Freedom Path that it was not operated "exclusively for the promotion of social welfare." The Service relied, in part, on the facts and circumstances test in Revenue Ruling 2004-6 to support its conclusion that the organization engaged in too much political campaign intervention and therefore was not primarily engaged in the promotion of social welfare. Freedom Path brought an action seeking to declare Revenue Ruling 2004-6 facially unconstitutional because it's vagueness "chilled" the exercise of rights guaranteed under the First Amendment. A Federal District Court in Dallas found that Freedom Path had standing but that Revenue Ruling 2004-6 was not unconstitutional. Freedom Path appealed. In a January 16, 2018 opinion, the reasoning of which I found somewhat muddled, the Fifth Circuit Court stated that Freedom Path lacked standing:
Freedom Path asserts there is standing to make a facial challenge to the “Facts and Circumstances Test” of the Revenue Ruling because the test is vague, overbroad, and chills its speech. A specific allegation in the complaint is that Freedom Path decided not to air “Leader,” a television advertisement, because this test made it unclear whether airing the ad would be viewed as an exempt function activity or non-taxable issue advocacy. “Chilling a plaintiff's speech is a constitutional harm adequate to satisfy the injury-in-fact requirement.” Houston Chronicle Publ'g Co. v. City of League City, 488 F.3d 613, 618 (5th Cir. 2007).
Even if Freedom Path has made a sufficient claim of chilled speech, the injury must be traceable to the allegedly vague provision. For Freedom Path to have standing, we must be convinced that a supposedly vague Facts and Circumstances Test is what chills Freedom Path's speech.
Freedom Path emphasizes that the IRS relied in part on the Revenue Ruling in its proposed denial of Freedom Path's Section 501(c)(4) status, and consequently the Revenue Ruling was the agent of its injury. Further, Freedom Path argues its status as a 501(c)(4) organization could be threatened if the IRS determines that too many of its expenditures were for exempt functions rather than issue advocacy.
The problem we see with this argument is that the plaintiff is not arguing that the law in question is invalid because of how that directive affects its tax liability — which is the determination that is the purpose of the Revenue Ruling. Instead, Freedom Path's argument is that the IRS uses this Revenue Ruling for other purposes as well, and specifically as one of the tests for determining whether an applicant is entitled to recognition as a 501(c)(4) organization.
This argument leaves the facial terms of the Revenue Ruling behind and moves into the arena of an as-applied challenge. To find the unconstitutionality Freedom Path claims requires that we go beyond the language of the Revenue Ruling and analyze the way in which the IRS applies it beyond the text. On a facial challenge, however, we do not look beyond the text. See Washington State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-50 (2008). We agree that “[a] ‘facial challenge’ to a statute considers only the text of the statute itself, not its application to the particular circumstances of an individual.” Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 174 (2d. Cir. 2006). The Revenue Ruling does not even facially apply to determinations of an organization's Section 501(c)(4) status. Instead, the purpose of the Revenue Ruling 2004-6 is to determine whether particular expenditures of funds by a 501(c)(4), 501(c)(5), or 501(c)(6) organization were for an exempt function “as described in [Section] 527(e)(2).” Rev. Rul. 2004-6, 2004-1 C.B. at 329.
We cannot conclude based on Freedom Path's arguments that its alleged injury of chilled speech is traceable to the text of Revenue Ruling 2004-6. Indeed, whatever vagueness it may have does not lead to uncertainty about the tax liability of organizations like Freedom Path when they have no investment income. That is because, as we earlier discussed, an organization is taxed under Section 527 for exempt function activity only to the extent the organization has net investment income. I.R.C. §527(f)(1). Freedom Path admittedly has no such income and no tax obligation.
Darryll K. Jones
Wednesday, November 28, 2018
In yesterday's NY Times, two physicians published a provocative op/ed regarding the inefficiency and regressivity of the charitable contribution deduction, particularly after the TCJA. Here are few excerpts:
We suspect that funding tuition at one expensive New York City medical school, constructing another cancer treatment center in a city already rich with them or building even more research capacity at one of the nation’s best-endowed universities is not at the top of most voters’ priority lists. It is, instead, mainly the very, very wealthy who pass on the costs of their causes. In 2016, half of all the tax dollars deducted as a result of charitable gifts in New York State were deducted by the top 0.5 percent of tax filers, who earned $1 million or more. The bottom 60 percent of tax filers were responsible for 5 percent. . . .
The wealthier the donor, the more taxpayers lose out. According to the Tax Policy Center, in 2017, a $1 donation from someone in the top 1 percent of earners reduced the government’s funds by 32 cents, while a $1 donation from someone in one of the bottom two income quintiles reduced it by less than 5 cents. This is because higher earners are in higher tax brackets, which means that giving them a pass on those taxes costs the country more. It is also because wealthy individuals often have appreciated stock that they can donate, which lets them avoid paying the capital gains taxes that they would otherwise owe if they cashed in on that stock themselves. Finally, you have to itemize deductions to get almost any reduction in taxes from giving. Nearly all wealthy people do so, but it’s rare among lower-income people. The new tax law will make it even rarer; the Tax Policy Center predicts that it will reduce the number of households that take the charitable deduction to 16 million from 37 million. Eliminating the tax deduction for charitable giving would not be politically viable. But we could limit it, either through lowering the cap on how much of a gift can be deducted or setting a flat percent of each donated dollar that can be used as a credit against one’s tax bill. We could also call on the philanthropists who are making these enormous contributions to voluntarily forgo the deduction. Many megawealthy individuals have followed Bill Gates's and Warren Buffett's lead and pledged to give away half of their accumulated wealth. Perhaps they could also pledge that through their funding of the causes they hold dear, they will neither reduce the ability of our government to fund its priorities, nor shift some of the cost of their gifts onto other taxpayers.
Friday, November 2, 2018
Brunson on Freedom from Religion Foundation's Challenge to Church Exemption from IRS Form 990 Filing
Sam Brunson (Loyola-Chicago) has posted NonBelief Relief and Form 990 on The Surly Subgroup. In this post he describes and analyzes the latest legal challenge from the Freedom from Religion Foundation to the tax benefits enjoyed by churches and other houses of worship. More specifically, this just-filed lawsuit claims that the exemption for such entities from the annual information return requirement applicable to almost all other entities that are exempt from federal income tax under section 501 of the Internal Revenue Code is a violation of the Establishment Clause of the Constitution. The vehicle for this challenge is a secular charity established by the Foundation, NonBelief Relief, that (presumably intentionally) failed to file a Form 990 for three consecutive years and so has now had its exemption revoked by the IRS. Cutting to the chase (see the post for more details), Brunson thinks there is a case here but that "it seems like Congress could enact an exemption like this to avoid the risk of impermissible entanglement" and the exemption is "at least a viable candidate" for a constitutionally permissible accommodation of religion.
Sixth Circuit Holds "Hobby Loss" Factors Can Help Determine if Money-Losing Nonmember Events are a Trade or Business
In Losantiville Country Club v. Commissioner, the U.S. Court of Appeals for the Sixth Circuit had to consider whether the U.S. Tax Court properly denied a section 501(c)(7) social club's attempt to apply losses from its nonmember events to offset its investment income and so avoid tax on that income. While the nonmember events had lost money during each of the 14 previous years (2002 to 2015), the Sixth Circuit held that the Tax Court had improperly treated that fact as conclusively establishing that those events did not constitute a trade or business. The Sixth Circuit instead held that the key issue is "intent to profit," for which profitability (or the lack thereof) is relevant but not determinative. Instead, the court looked to the factors listed in the "hobby loss" regulations under section 183 as providing relevant other considerations to the extent they applied to a tax-exempt nonprofit. Although normally this legal standard error would require remand, here the Sixth Circuit found that the factual record was complete and uncontested and so it could simply apply the correct legal standard to that record. When it did so, it found the lengthy history of losses combined with no evidence of attempts to stem those losses or of any other countervailing facts demonstrated a lack of the necessary profit motive. The Sixth Circuit also affirmed the imposition of the 20 percent accuracy-related penalty, finding no grounds for holding that the club relied on its accountants in a manner that was either objectively reasonable or in good faith.
The enactment of section 512(a)(6) (requiring siloing of unrelated trades or businesses in order to prevent use of losses from one such trade or business to offset income of another such trade or business) will make determination of whether a given, loss-generating activity is a trade or business less important in the future for tax-exempt organizations. Nevertheless, this decision may still be important to country clubs because Notice 2018-67 (see Section 7) asks for comments regarding how both nonmember activities and investment income for such clubs should be treated under that new section.
Bryan Camp (Texas Tech) has written a TaxProf Blog post commenting on an interesting case out of the U.S. Tax Court. In Wayne R. Felton and Deondra J. Felton v. Commissioner, the court concluded that funds given by parishioners directly to their minister were additional taxable compensation to him and not nontaxable gifts. It also found that penalties applied, given the failure of the taxpayers to show they acted with reasonable cause and in good faith. For more details, see Camp's detailed analysis.
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.
Tuesday, July 3, 2018
I previously blogged about the lawsuit by the Pearson Family Members Foundation and Thomas L. Pearson against the University of Chicago relating the University's alleged failure to abide by the terms of a grant agreement for the creation and funding of The Pearson Institute for the Study and Resolution of Global Conflicts and The Pearson Global Forum. The United District Court for the Northern District of Oklahoma has now ruled on the University's motion to dismiss. Applying New York law, as required by the agreement, the court granted the motion with respect to a fiduciary duty claim because a fiduciary relationship did not exist between the grantor and the grantee and with respect to a fraudulent concealment claim because it was superseded by a breach of contract claim. The court did, however, allow not only the breach of contract claim but also a breach of duty of good faith and fair dealing claim and an anticipatory retaliation claim to proceed. Stay tuned for further developments.
The United States District Court for the Eastern District of Louisiana recently held in Rowe v. United States that the special rules applicable to church tax inquiries and examinations under Internal Revenue Code 7611 do not apply when the IRS seeks church financial records relating to an investigation into the tax liability not of the church but its pastors. The taxpayers in the case, Dr. Herbert H. Rowe and his wife Dr. Carol G. Rowe, are pastors at the Upperroom Bible Church in New Orleans. According to the court, the Rowes had not filed a federal income tax return from 1996 to 2011 (the last year being the one under investigation for them), although they filed a tax return for 2011 after the investigation began. As part of its investigation, the IRS issued broad summonses for records relating to church bank accounts at two banks. The court concluded that the plain language of section 7611 meant that section did not apply to investigations relating to the tax liability of parties other than the church itself, and cited a number of decisions reaching that conclusion with respect to summons directed at church financial records. The court then concluded that the normal rules for such summonses supported their issuance, and therefore denied the Rowes' petition to quash the summonses and granted the government's motion to dismiss that petition.
Monday, May 7, 2018
When is a volunteer an "employee"? The question is a complicated one, but the Sixth Circuit recently rejected the Department of Labor's attempt to require a church-owned enterprise to pay all volunteers a minimum wage.
A church run by controversial televangelist Ernest Angley owns a for-profit restaurant buffet. Angley would recruit church members to serve as volunteers for the restaurant. The Department of Labor sued alleging that the workers were "employees," arguing 1) that there was no such thing as a "volunteer" for a for-profit entity, and that 2) the workers were coerced by their pastor and thus were not truly volunteers. The District Court agreed, finding "The Buffet’s constant solicitation of volunteer labor, Reverend Angley’s admissions that the use of volunteer labor was intended to save money, and the volunteers’ feelings of pressure and coercion to provide the labor all demonstrate that the volunteers were actually employees.” (Previously covered on this blog.) Facing a judgment of $388k, the restaurant closed during the litigation.
In an interesting and important decision, the Sixth Circuit strongly disagreed, and held that the volunteers were not employees.
Thursday, May 3, 2018
George Mason University, a state university, is struggling to address a controversy that has erupted over the influence that sizeable donations to its affiliated foundation by the Charles Koch Foundation and others may have given over academic decisions. According to a Washington Post report, a student group, Transparent GMU, has sued in state court seeking access to agreements between the foundation and these donors, arguing that they are covered by Virginia's open records laws. While the group filed the lawsuit over a year ago, it appears to only have received limited coverage (see, e.g., Huffington Post, Fairfax Times) before a recent court hearing.
The Charles Koch Foundation donations at issue include $10 million gift relating to the renaming of the law school for deceased Supreme Court Justice Antonin Scalia and $5 million gift to the economics department to create three new faculty positions. According to a follow-up Washington Post story, the University's president has now stated that some gift agreements "fall short of the standards of academic independence." For example, some of the agreements included terms granting donors a right participate in faculty selection and evaluation for some economics department positions. While the lawsuit is proceeding, the University has already released some of the agreements at issue and, according to a N.Y. Times story, launched an internal inquiry. The University has also noted that those agreements, with one exception, have expired.
The University of Chicago, a private university, is facing a different but related situation. Thomas L. Pearson and twin brother Timothy R. Pearson pledged to give $100 million to the University through their family foundation to create a research institute to advance the cause of world peace. As reported by Bloomberg and student newspaper The Chicago Maroon, the foundation has now filed a lawsuit in federal court (U.S. District Court, Northern District of Oklahoma) alleging numerous breaches of the grant agreement by the University and demanding the return of the $22.9 million it has paid so far. The University is seeking to dismiss the suit, according to a Chicago Tribune report, asserting that the foundation cannot prove that it violated any of the grant agreement's terms. Additional coverage: The Chronicle of Philanthropy (subscription required); The Nonprofit Times.
While these two stories are the most prominent recent ones, there have been recent developments in two other major disputes with donors. The Legal Intelligencer (law.com) reports that last month a federal judge in Pennsylvania ruled that Foremost Industries had to fulfill its $4 million pledge to Appalachian Bible College. The College had sued to enforce its gift agreement with the company, and the court considered the College's motion for summary judgment unopposed after the company failed to file its opposition brief by the deadline set by the court. The company is now closed, which may indicate that it will be difficult for the College to collect on its judgment.
And the The Inquirer (Philadelphia) reports that the Abington School District board of directors has voted to accept a $25 million gift from billionaire Stephen Schwarzman, after rejecting an earlier gift agreement with the donor after gift stirred local controversy because of concerns about its terms and the structure of the nonprofit the board is creating to administer the donation. The controversy erupted when the board initially voted to accept the gift and its then terms, including renaming the high school for the donor, without almost no advance warning to the public and without making the gift agreement public.
Sunday, February 25, 2018
In this piece, Professors Adam Chodorow and Ellen Aprill discuss section 107(2), which permits churches and other religious organizations to provide tax-housing to their ordained ministers, in the context of litigation involving the provision. They argue that the exemption provides special benefits unavailable to laypeople and thus raises serious establishment clause concerns.
Readers please note: After this piece went to press, the court enjoined enforcement of section 107(2) beginning 180 days after the later of the conclusion of any appeals or expiration of time for filing any appeal.
Is is timely because an appeal has just been filed in Gaylor v. Mnuchin, seeking to overturn the federal district decision concluding that the parsonage allowance found in section 107 of the Internal Revenue Code is an unconstitutional establishment of religion. We therefore will eventually know whether the U.S. Court of Appeals for the Seventh Circuit agrees with Chodorow and Aprill or with those, such as Edward Zelinsky (Cardozo), who take a contrary position.
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.
In an unpublished opinion, the U.S. Court of Appeals for the Ninth Circuit has affirmed the Tax Court decision against a private foundation that allegedly engaged in lobbying prohibited as a taxable expenditure under section 4945 of the Internal Revenue Code. The case of Parks Foundation v. Commissioner had attracted significant attention because of its potential ramifications for how attempting to influence legislation (i.e., lobbying) is defined for federal tax purposes, particularly with respect to private foundations and charities more generally, as previously noted in this space. Perhaps seeking to avoid those issues, the court instead limited its brief opinion to whether the communications at issue failed to qualify as educational because they did not satisfy the methodology test provided by Revenue Procedure 86-43. It found that the Tax Court did not err in concluding that the communications at issue did not satisfy that test. The Ninth Circuit also found that the Tax Court did not err in determining that the "cursory commentary" provided by the Foundation's tax counsel with respect to three of the communications was not reasoned and so did not provide a defense to the manager's tax provided by section 4945(a)(2).
Because the opinion is unpublished, it has only very limited precedential value under the Ninth Circuit Rule 36-3(a) ("Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion."). What remains to be see therefore is to what extent the underlying Tax Court decision guides future decisions in that and other courts.
Sunday, November 19, 2017
Adam Chodorow (Arizona State) has written a brief analysis of Gaylor v. Mnuchin for the ABA Tax Times. titled A Step Toward Greater Clarity on Clergy Tax Exemptions? Here is the first paragraph:
On October 6, 2017, the U.S. District Court for the Western District of Wisconsin declared section 107(2) of the Internal Revenue Code unconstitutional. The provision permits “ministers of the gospel” to exclude from income compensation designated as a housing allowance, thus giving churches and other religious organizations the ability to provide tax-free housing to their ordained ministers. The provision applies not only to parish priests living in modest housing, but also to televangelists like Joel Osteen, who currently lives tax-free in his $10.3 million mansion. It also applies to ministers who work in church-affiliated schools as teachers and administrators. This affords a significant benefit for certain schools whose religious tenets include the ministry of all believers. In one case, a basketball coach was entitled to exclude his housing allowance from income. The government foregoes around $800 million in revenue per year as a result of this provision, and, if the decision stands, it could have a significant impact on churches and other religious institutions.
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.
Wednesday, October 11, 2017
When is criticism against your organization grounds for a defamation suit? In a handful of recent lawsuits filed in recent
months, groups designated as "hate groups" by the Southern Poverty Law Center have sued both SPLC (and, in one instance, charity-rater Guidestar which briefly used SPLC's designations until stopping due to pressure) for defamation. Under SPLC criteria, a hate group includes an organization that expresses "opposition to LGBT rights, often couched in rhetoric and harmful pseudoscience that demonizes LGBT people as threats to children, society and often public health." Evangelical christian groups take exception when they end up on SPLC's list.
Whether you agree with SPLC's methodology or find it flawed, SPLC discloses the rationale behind its hate group designations. Barring some yet-to-be-disclosed facts, the defamation suits against SPLC have very little chance of success... at least, in the courtroom. However, the litigation has provided the plaintiffs a good deal of press and the chance to make their case to the public at large.
Saturday, October 7, 2017
Forbes' contributing author Peter Reilly: "It's deja vu all over again in the United States District Court For The Western District of Wisconsin as Judge Barbara Crabb rules that Code Section 107(2) - the parsonage exclusion- is unconstitutional." Read the interesting piece here.
Sam Brunson (Loyola - Chicago) discusses implications of the ruling for religious institutions at By Common Consent.
Wednesday, August 16, 2017
Over the summer, the United States Tax Court in RERI Holdings I, LLC v. Commissioner upheld the disallowance of a $33 million charitable contribution deduction because of the failure of RERI Holdings I, LLC to state on its required Form 8283 appraisal summary the "Donor's cost or other adjusted basis" for the property. The court further held that the failure could not be excused by substantial compliance because the omission "prevented the appraisal summary from achieving its intended purpose" of alerting the IRS of potential overvaluations of contributed property (and thereby deterring taxpayers from claiming excessive deductions). In this instance the omitted basis would have been approximately $3 million, or roughly one-tenth the value claimed for the contributed property.
While failures to substantiate charitable contributions adequately occur frequently in tax cases, they usually do not affect such large claimed deductions because presumably as the numbers get larger the care and expertise of the professionals involved becomes greater. There may have been more going on here, however. At least one commentator, Peter J. Reilly over at Forbes, concludes that the "brazeness of the charitable plan . . . revealed in the Tax Court RERI Holdings I decision is stunning" in an article titled Billionaire Stephen Ross And the Ten for One Charitable Deduction. Assuming the IRS took a similar view, it very well could have been looking for any possible flaw in the deduction that could be used to disallow it, and the substantiation omission provided a simple way to do so (as opposed to getting into a messy valuation dispute, although the court's opinion goes there anyway in order to determine if certain penalties applied).
No word yet on whether RERI Holdings I will appeal.