This post was originally published on Forbes Jul 30, 2015
Last week in less than two minutes President Obama gave his view on the interminable never-ending IRS scandal now on Day 812 by TaxProf count. In the President's view what is scandalous is a crummy law that Congress needs to clarify and the gutting of the IRS budget. Also last week we had another great scandal revelation from Judicial Watch JW Uncovers Obama IRS Audit Abuse
Judicial Watch has released more blockbuster documents from the Internal Revenue Service (IRS) that confirm that the IRS used donor lists of tax-exempt organizations to target those donors for audits. The documents also show that IRS officials specifically highlighted how the U.S. Chamber of Commerce may come under “high scrutiny” from the IRS. We forced these records out through a Freedom of Information lawsuit seeking documents about the selection of individuals for audits, based upon application information and donor lists submitted by Tea Party and other 501(c)(4) tax-exempt organizations.
Foolishly I set myself the task of checking out the blockbuster documents, which along with a medical procedure accounts for my low productivity this week. You can check out the documents yourself by clicking on this link, but you need to be patient because it is a long download. There are over 5,000 pages. The dump reminded me a bit of one of my partners offices. He didn't like to read on screen so he would print lots of stuff out and it would be in stacks. I guess there are people like that at the IRS. There are multiple copies of articles about the issue being addressed with some e-mails and multiple copies of relevant decisions and memos. Also quite a bit of training material.
Your Money Or Your Anonymity
The issue that all the material was addressing was whether contributions to 501(c)(4) organizations are subject to gift tax. 501(c)(4) organizations have become favored vehicles in some circles because they are allowed to make substantial political expenditures, but donations to them are not publically disclosed. There is a problem though, contributions to 501(c)(4) organizations might be subject to gift tax.
In case you don't want to wade through the 5,000+ pages yourself I found a really nice power point that was put on at an ABA meeting in October 2011. Essentially the IRS took the position that gifts to 501(c)(4)'s were subject to gift tax in a 1982 ruling, but then never took any enforcement action and never issued any further clarification.
Then in 2003 and 2004, there were two articles by Barbara Rhomberg in Taxation of Exempts -The Law Remains Unsettled on Gift Taxation of Section 501(c)(4) Contributions and Constitutional Issues Cloud the Gift Taxation of Section 501(c)(4) Contributions. Multiple copies of those articles greatly swelled the Judicial Watch document dump, so I figured I needed to speak to her if I was going to understand this.
Ms. Rhomberg is a sole practitioner attorney in San Francisco advising not for profits on governance and tax issues. When she wrote the articles that would make her famous among a small coterie of very high-level IRS tax geeks she was an associate at the firm of Adler & Colvin. Gregory Colvin had asked her to look into the possibility of 501(c)(4)s being subject to gift tax. As far as she knows the question was not tied to a live client situation.
In her articles Ms. Rhomberg concludes that there is strong support for the notion that contributions to 501(c)(4)s are subject to gift tax. She also concluded that such taxation raises constitutional issues.
Clients Want Answers
Clients Want Answers
Here is the thing about this issue. It would never have crossed my mind that a donation to a 501(c) of any sort is subject to gift tax. Conceptually it seems like the gift tax is a backstop to the estate tax. That's not how it is written though. There is a specific gift tax exemption of charitable contributions (501(c)(3)) and Congress added an exemption for political contributions (527) in the seventies. Those specific exemptions imply that contributions to other organizations could be subject to gift tax.
The definitions in the campaign finance disclosure laws do not align that well with the definitions in the Internal Revenue Code. Some practitioners would argue that a donation was political for purposes of the gift tax but not political for purposes of disclosure. Others probably ignored or were not that aware of the issue. Apparently some practitioners advised their clients to pay gift tax.
As the 501(c)(4) became the preferred vehicle for dark money, people from the ABA began, on an informal basis, to push the IRS for clarity on the issue. There was no response.
Whose Ox Is Being Gored?
Tax geeks can look at issues like this and have a lot of intellectual fun with them and wonder why Congress doesn't just straighten it all out. The more Machiavellian tax geeks delight in this kind of ambiguity that allows them to demonstrate to their clients that they have found the way to let them have their cake and eat it too.
The reason Congress can't just fix it is that each party wants a level looking playing field that is tilted in its direction. Dark money is used by both the Left and the Right, but according to Open Secrets it is much more of a conservative thing. In the 2012 election cycle there was over $240 million in conservative dark money and about $60 million in liberal dark money. Conservatives labor under a disadvantage that was best expressed by once popular novelist James Gould Cozzens, whose work is now sadly neglected
The average fair-minded person is inclined to be "liberal" for the chief reason that he can't but see that conservatism, however plausible its arguments, must boil down to a declaration by those who are top-dog that it's good and right for them to be remain top-dog .
Money in politics makes up for that disadvantage.
So the question of whether political contributions to "social welfare" organizations are subject to gift tax is not politically neutral. Even-handed enforcement of the rule would have disadvantaged Republicans.
The gift tax broke as a scandal in May 2011 at an American Bar Association Tax Section meeting. You're talking the ultimate tax geeks here. Members of the Exempt Organization Subcommittee shared that several of their clients had received letters from the IRS that they were being audited on the issue of donations to 501(c)(4) organizations not being reported on gift tax returns.
Included in the 5,000 documents are emails among various IRS people trying to sort the whole matter out. Mainly they are trying to get one another up to speed on the issue.
Tom Miller of SB/SE Communications put out an email
Media contact from NYTimes of Gift Taxes ...... Do you know if there is a program with SBSE looking for gift tax returns that omitted including gifts to 501(c)(4)s?
In another email he wrote
This is a biggy since it's the NY Times (and Tax Notes Today probably), even if we don't want to say anything MR needs some sort of repsonse ASAP.
The e-mail I found most revealing was from Lorraine Garder to Curt Wilson with copy to James Hogan (Page 5000 in the file)
___________ is auditing the 501(c)(4) and made the referal to SBSE of the nonfilers and he has a lot of factual knowledge about the 501(c)(4) organization and, of course, tremendous knowledge of 501(c)(4) rules etc
In the end the IRS ended up putting out a press release that emphasized that the five gift tax audits were initiated by career civil servants with no input from political appointees and the Commissioner issued an order indicating that pursuing the 501(c)(4) gift tax issue was not a good use of enforcement resources.
Is There A Scandal Here?
The weight of the "blockbuster documents" seems to support the notion that this was a case of tax geeks stepping on a land mine. The issue of whether the gift tax applies to 501(c)(4) contributions remains unresolved so one revenue agent in the exempt group making a referral to estates and gifts is hardly shocking. Whoever got the referral in estates and gifts, when they looked into the matter would find that there was strong support for raising the issue.
There was one email where someone was wondering how it had all happened and whether there needed to be controls over those type of referals to make sure everybody relevant knew what was going on. I suspect that Frank Wolpe who has written on the baleful effects of the IRS reorganization in the ninetites would attribute the problem to the silo style of management.
Overall, this particular document dump seems to support the President's view that what is scandalous is the confusing nature of the law. There is certainly no evidence of political appointees mucking around in the details of IRS operations.
They Follow Tax Blogs At The IRS
At the time Joe Kristan thought that the IRS was wrong to raise the issue and that Senators were right to call the Service to account about it. And this is the part of the document dump that I found most interesting. Paul Caron summarized Joe's post and that was apparently printed out numerous times at the IRS as there are multiple copies in the document dump. At 4889 in the dump James Hogan writes to Leslie Finlow
I know you've been sucked into this particular morass - thought you might find this useful.
The only problem is that Paul Caron is a pretty good looking guy, but if you take the picture then used on TaxProf, print it out, photo copy it and then scan it, he looks a little villainous.