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Charity in the 21St Century: Trending Toward Decay

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Charity in the 21St Century: Trending Toward Decay The Catholic University of America, Columbus School of Law CUA Law Scholarship Repository Scholarly Articles and Other Contributions Faculty Scholarship 2011 Charity in the 21st century: Trending toward Decay Roger Colinvaux The Catholic University of America, Columbus School of Law Follow this and additional works at: https://scholarship.law.edu/scholar Part of the Tax Law Commons Recommended Citation Roger Colinvaux, Charity in the 21st century: Trending toward Decay, 11 FLA. TAX REV. 1 (2011). This Article is brought to you for free and open access by the Faculty Scholarship at CUA Law Scholarship Repository. It has been accepted for inclusion in Scholarly Articles and Other Contributions by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact [email protected]. FLORIDA TAX REVIEW Volume 11 2011 Number 1 CHARITY IN THE 21ST CENTURY: TRENDING TOWARD DECAY by Roger Colinvaux* PART I. INTRODUCTION ............................................ 3 PART II. SYNOPSIS OF THE DEVELOPMENT OF THE TAx PREFERENCE FOR CHARITABLE ORGANIZATIONS - OPEN ENDED GROWTH .......... 8 PART III. SCANDALS AS SYMPTOMS OF A NEED FOR REFORM................. 18 A. Overview ................................... ..... 18 B. Some Specifics of Some of the Scandals................... 20 1. Scandals at Certain Iconic CharitableInstitutions............. 20 2. Contributions ofNoncash Property.................. 23 3. Tax Shelters....................................28 4. PrivateFoundations......................... 29 5. Grant-MakingPublic Charities:Supporting Organizations and DonorAdvised Funds .......... ............. 31 6. Hospitals ..................................... 33 7. Credit Counseling Organizations ....................... 35 8. Use of Charitiesby Members of Congress..... ......... 36 9. "Excess" Compensation ..................... 37 C. Summary ........................................ 38 PART IV. PIECEMEAL REFORM ..................................... 39 A. The Legislative Response. ........................ ..... 39 B. Frustrationwith the Breadth of the CharitableDesignation...........44 1. Credit Counseling Organizations ......... ........... 45 2. Hospitals ..................................... 50 C. Breakdown of the Public Charity-PrivateFoundation Distinction..53 1. In General .................................... 53 * Associate Professor of Law, The Catholic University of America, Columbus School of Law. Copyright Roger Colinvaux. As Legislation Counsel to the Joint Committee on Taxation on tax-exempt organization issues from March 2001 to June 2008, the author was directly involved in the formulation and drafting of the charity reform and incentive legislation enacted over the period and discussed in this Article. I am grateful to Ellen Aprill, Evelyn Brody, and Karla Simon for comments on an earlier version of this Article, to Ron Schultz for comments on the penultimate draft, and to the Law and Society conference participants for their feedback. Also, a dedication to Gary Bornholdt, a great colleague and good friend, who contributed to the charity reform legislation, and who left us much too soon. I 2 Florida Tax Review [Vol. 11:1 2. Selectively Importing PrivateFoundation Rules for Public Charities ....................................... 588 3. Summary ........................................ 64 D. Toward BrighterEnforcement Lines.....................64 PART V. CONCLUSION: A DAMAGED CHARITABLE FORM AND FRAMEWORK............................................69 2011] Charity in the 21st Century 3 PART I. INTRODUCTION The turn of the century seemed to bring with it a sharply critical focus on charity.' Under federal tax law, a charity includes organizations that are "organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes." This single phrase provides a standard not just for tax exemption for over 1.2 million organizations (which are diverse in purpose, size, function, complexity, and effectiveness) but also access to several tax and nontax preferences, including eligibility to receive tax deductible contributions (for income, estate, and gift tax purposes), 2 access to tax-exempt financing,3 State property tax exemptions, and regulatory relief, among other benefits.' The concerns about charities surfaced largely through press reports and are legion: spending of earmarked contributions for non-earmarked purposes; excess compensation to organization insiders; mission drift-deliberate, or aided by faulty corporate governance; acceptance of property contributions when donors or others are the principal beneficiaries; participation in illicit tax shelter transactions; spending for non-charitable purposes; accumulations of income; failure to provide charitable services; use of the charitable form for non-charitable purposes; questionable investment practices; participation in political campaigns; and self-dealing transactions, to name a few. The response to ongoing scandals by the Internal Revenue Service (IRS) and the Congress was mixed. As the scandals unfolded, the IRS continually pointed to abuses and the need to address them,' but also asserted 1. For ease of reference, when used in this Article, the terms "charity" and "charitable organization" include reference to the principal organizations described in § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). This includes religious, charitable, scientific, literary, and educational organizations. Unless otherwise indicated, all section references are to such Code. 2. IRC §§ 170, 2055(a)(2), 2522(a)(2). 3. IRC § 145. 4. See Evelyn Brody, All Charities are Property Tax-Exempt, But Some are More Exempt Than Others, 44 New Eng. L. Rev. 621 (2010); Janne Gallagher, The Legal Structure of Property-Tax Exemption, in Property-Tax Exemption for Charities 3 (Evelyn Brody ed., 2002). 5. See Staff of Joint Committee on Taxation, 109th Cong., Historical Development and Present Law of the Federal Tax Exemption for Charities and Other Tax-Exempt Organizations, at Appendix (Joint Comm. Print 2005) [hereinafter JCT Historical Development] (including in Appendix a memorandum by Congressional Research Service that documents a variety of benefits provided to charitable organizations under Federal and State law). 6. The reported scandals are surveyed and discussed in Part III of this Article. 7. See Letter from Mark W. Everson, Commissioner of Internal Revenue, to The Hon. Charles E. Grassley, Chairman, S. Comm. On Fin. 3 (Mar. 30, 2005), 4 Florida Tax Review [VOL 11:1 that the charitable sector is "compliant," notwithstanding a minimal examination rate.8 As part of its enforcement efforts, the IRS completed an available at http://finance.senate.gov/imo/media/doc/Letter%20from%20Everson.pdf ("We are concerned that tax-indifferent parties are being used as accommodation parties to enable abusive tax shelters."; id. at 5 ("[Some charities are] established to benefit the donor . a donor receives a charitable contribution deduction while maintaining control over the contributed assets, often using them for personal gain."); id. at 7 ("We also have persistent problems in taxpayers' valuation of deductions taken for non-cash charitable contributions."); id. at 8 ("[T]here is a major risk that organizations that effectively allow key executives too great a voice in determining their own compensation will not end up with objective and reasonable compensation levels."); id. at 13 ("In many areas of our jurisdiction, our remedial tools are not effective. Often our only recourse is revocation of tax- exemption, a 'remedy' that may work a disproportionate hardship on innocent charitable beneficiaries . Moreover, even where we have an intermediate sanction, it may not work as intended."); Charity Oversight and Reform - Keeping Bad Things from Happing to Good Charities: Hearing Before S. Comm. on Fin., 108th Cong. 128 (2004) (written statement of Mark W. Everson, Commissioner of Internal Revenue) ("[T]here are abuses of charities that principally rely on the tax advantages conferred by the deductibility of contributions to those organizations."); id. at 130 ("[W]e have seen business contracts with related parties, unreasonably high executive compensation, and loans to executives."); id. at 134 ("[S]tronger governance procedures are needed for exempt organizations."); id. at 138 ("IRS has no sanctions [to address participation by exempt organizations in tax shelter transactions] comparable to those that can be imposed on promoters or investors."). 8. See Tax-Exempt Charitable Organizations: Hearing Before the Subcomm. on Oversight of the H. Comm. on Ways & Means, 110th Cong. 12 (2007) (written statement of Steven T. Miller, Commissioner, Tax Exempt and Gov't Entities Div., Internal Revenue Serv.) (noting that although compliance "problems do exist . on the whole, the charitable sector is very compliant with the Tax Code"). Steven Miller's comments came one year after passage of the PPA (and after control of Congress shifted from Republican to Democrat); whereas Mark Everson's comments, supra note 7, preceded enactment of the PPA. During his oral testimony, Miller provided some data on exams of tax-exempt organizations (including more than just charitable tax-exempt organizations): "Last year we examined more than 7,000 returns, up 23 percent from 2003 and the most we have examined since the year 2000." Id. at 10. Representative Xavier Becerra questioned Mr. Miller about this statement, confirming
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