The Internal Revenue Service, in my experience, does not back down from a fight it thinks it can win, even if that belief has little foundation in the tax law.
Professional literature is full of court cases, large and small, that the Service litigated and lost. Many more assessments are issued by IRS examiners but are dropped by their supervisors, canceled or resolved in the IRS Appeals office (which is remarkably independent despite being part of the agency itself), or settled before trial. Even when courts rule against it, only sometimes does the Service “acquiesce” to those decisions and change its thinking; other times, it publicly announces that while it will honour the decision favouring that particular taxpayer, it will continue to litigate the unsuccessful position against others until it wins or until other courts agree that it is wrong.
The IRS, in other words, has the courage of its convictions and is not afraid to be corrected. This history is worth keeping in mind when we read the memo the agency issued this month in which it abandoned plans to try to collect gift taxes on wealthy donors’ contributions to nonprofit advocacy groups.
“This is a difficult area with significant legal, administrative, and policy implications with respect to which we have little enforcement history,” Deputy Commissioner for Services and Enforcement Steven T. Miller wrote. He added that, “until further notice, examination resources should not be expended on this issue” and that all current examinations should be closed. The New York Times called the memo “a sharp reversal for the tax agency.”
I call it a belated acknowledgment that the Service did not have a legal leg to stand on. The only thing surprising about the memo was that the IRS reversed field so quickly. I predicted here two months ago that the agency was unlikely to take its theory to court.
The IRS originally raised the issue by sending letters to five major donors, informing them that they might owe gift taxes on contributions to social welfare and advocacy groups of the sort defined in Section 501(c)(4) of the Internal Revenue Code.
These groups include “civic leagues or organisations not organised for profit but operated exclusively for the promotion of social welfare.” Many of them engage in political, environmental or other public policy advocacy. The tax code does not explicitly state that contributions to these groups are exempt from gift tax, but this has long been assumed to be the case, since donations to other types of non-profits and to political candidates are explicitly exempted from gift tax. The IRS letters challenged that assumption.
If donations to 501(c)(4) organisations could be considered taxable gifts, contributions to groups including the NAACP, the AARP and Americans for Prosperity would be taxed in the same way as gifts to individuals. For 2011, that would mean contributions in excess of an annual $13,000 per donee exclusion would be counted toward donors’ lifetime tax-free giving cap of $5 million. For individuals who have exceeded the lifetime cap, contributions would be taxed at 35 per cent.
Some of the journalists who reported on the IRS position seemed to dismiss the possibility that the IRS might simply be wrong in its interpretation of the law. The public, including the general circulation press, has little idea how often the IRS loses when it is challenged by professionals who know something about tax law. Even though the law did not specifically exempt donations to 501(c)(4) organisations from gift tax, there was ample reason to expect the IRS to lose if it pressed such claims against people with the wherewithal to fight back.
In two cases, Stern v. United States, decided by the Fifth Circuit in 1971, and Carson v. Commissioner, decided by the 10th Circuit in 1981, courts ruled that political contributions do not qualify as gifts. There is a strong First Amendment argument against taxing gifts on politically motivated contributions, such as those made to many 501(c)(4) organisations. And courts have long recognised that corporations and other entities neither make nor receive gifts, though they may be vehicles for gifts between individual donors and donees. If a contribution to an advocacy group is a taxable gift the identity of the donor is clear, but the IRS would have had to answer the question: who is the donee?
A politician whose campaign might benefit would not qualify, under the earlier court rulings. Contributions to advocacy groups are not transfers of wealth to be enjoyed by others, the way gifts are, but are instead expenditures made to express opinions, like taking out an advertisement in the newspaper. Taxing these contributions as gifts would effectively place a tax on free speech. Attorney Barbara Rhomberg laid out the constitutional concerns in two excellent articles published in the journal Taxation of Exempts in 2003 and 2004.
So the IRS probably knew from the beginning that it wouldn’t be able to win a court challenge, and since it specifically targeted high-profile donors, it must have known court challenges would be likely. Why would the Service make threats it did not think it could support?
I suggested at the time, and still believe, that the letters were a scare tactic aimed, not at the parties to whom the letters were mailed, but at tax lawyers who would inevitably hear of the letters at professional conferences and at their clients who read about the letters in papers such as The New York Times. While the large donors who received the letters presumably could have afforded a lengthy court battle – and in some cases may have even relished one – the publicity allowed the IRS to reach other taxpayers who might be more easily frightened.
The agency’s claims that the letters came from career revenue officers rather than from political appointees in top positions do not persuade me otherwise. Career officers have their political and policy views too, and the higher-ups did not exactly come out and say that the threat was misguided and withdrawn. Instead, the IRS has left its questionable argument on the shelf, where it can be dusted off and tossed around sometime in the future. The only thing the agency has conceded thus far is that it would prefer to devote its resources to other battles.
So we have to read between the lines. We can presume that the IRS prefers to fight battles it thinks it can win, and that this gift tax argument is not one of them.
It would be a mistake to disregard the Service’s views about the tax laws. It is, after all, the arm of government charged with enforcing those laws, and while the agency is wrong a fair amount of the time, it is not always off base or unreasonable.
So we have to pay attention to what the IRS says. But I would pay more attention to what it does. When it does nothing, as in the case of gifts to public advocacy groups, it is reasonable to conclude that even the IRS believes there is nothing it can do.
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