The Tax Law of Charitable Giving. Bruce R. Hopkins

nonprofit charitable, religious, and educational organizations; fraternal beneficiary societies; certain mutual savings banks; and certain mutual insurance companies. The 1894 legislation succumbed to a constitutional law challenge (Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), overruled on other grounds sub nom. South Carolina v. Baker, 485 U.S. 505 (1988)). The Sixteenth Amendment was subsequently ratified, and the Revenue Act of 1913 was enacted. In general, Pollack, “Origins of the Modern Income Tax, 1894–1913,” 66 Tax Law. (no. 2) (Winter 2013).

      24 24 McGovern, “The Exemption Provisions of Subchapter F,” 29 Tax Law. 523, 524 (1976).

      25 25 Income Tax Regulations (Reg.) § 1.501(c)(3)-1(d)(2).

      26 26 Statute of Charitable Uses, 43 Eliz., c.4.

      27 27 Cobb, The Rise of Religious Liberty in America, 482–528 (1902).

      28 28 Torpey, Judicial Doctrines of Religious Rights in America, 171 (1948).

      29 29 Trinidad v. Sagrada Orden de Predicadores de la Provincia del Santisimo Rosario de Filipinas, 263 U.S. 578, 581 (1924).

      30 30 Walz v. Tax Commission, 397 U.S. 664, 673 (1970).

      31 31 Portland Golf Club v. Commissioner, 497 U.S. 154, 161 (1990).

      32 32 Duffy v. Birmingham, 190 F.2d 738, 740 (8th Cir. 1951).

      33 33 Id.

      34 34 St. Louis Union Trust Co. v. United States, 374 F.2d 427, 432 (8th Cir. 1967).

      35 35 McGlotten v. Connally, 338 F. Supp. 448, 456 (D.D.C. 1972).

      36 36 Green v. Connally, 330 F. Supp. 1150, 1162 (D.D.C. 1971), aff'd sub nom. Coit v. Green, 404 U.S. 997 (1971).

      37 37 7 Id., 330 F. Supp. at 1162. In a situation where a partnership intended to make $4.75 million in charitable contributions but the gifts were, due to a clerical error, made by means of a business corporation's checks and the matter was corrected, a court refused to uphold the IRS's disallowance of the deduction, declaring that “[t]o disallow a charitable deduction simply because of a clerical error goes against the liberal policy of encouraging charitable giving” (Green v. United States, 2016 WL 552964 (W.D. Okla. 2016)). Likewise, Green v. United States, 2015 WL 1482508 (W.D. Okla. 2015), rev'd on other ground, 880 F.3d 519 (10th Cir. 2017).

      38 38 H. Rep. No. 1860, 75th Cong., 3d Sess. 19 (1939).

      39 39 Department of the Treasury, Proposals for Tax Change, Apr. 30, 1973.

      40 40 Report of the Commission on Private Philanthropy and Public Needs: Giving in America—Toward a Stronger Voluntary Sector at 9–10 (1975).

      41 41 Friendly, “The Dartmouth College Case and the Public-Private Penumbra,” 12 Tex. Q. (2d Supp.) 141, 171 (1969). Two other prominent sources are Rabin, “Charitable Trusts and Charitable Deductions,” 41 N.Y.U. L. Rev. 912 (1966); Saks, “The Role of Philanthropy: An Institutional View,” 46 Va. L. Rev. 516 (1960).

      42 42 Fink, “Taxation and Philanthropy—A 1976 Perspective,” 3 J. Coll. & Univ. L. 1, 6–7 (1975).

      43 43 Gardner, “Bureaucracy vs. The Private Sector,” 212 Current 17–18 (May 1979).

      44 44 Id. at 17.

      45 45 Id. at 18.

      46 46 Henle, “The Survival of Not-for-Profit, Private Institutions,” America, Oct. 23, 1976, at 252.

      47 47 O'Connell, America's Voluntary Spirit (New York: The Foundation Center, 1983).

      48 48 Id. at xi.

      49 49 Id. at xv.

      50 50 Id. at 81.

      51 51 Id. at 131.

      52 52 Id. at 162.

      53 53 Id. at 256.

      54 54 Id. at 278.

      55 55 Id. at 356.

      56 56 Id. at 368.

      57 57 Id. at 371.

      58 58 Id. at 408.

      59 59 The congressional budget and tax committees and the Department of the Treasury measure the economic value (revenue “losses”) of various tax preferences, such as tax deductions, credits, and exclusions (termed tax expenditures). The federal income tax charitable contribution deduction tends to be the sixth- or seventh-largest tax expenditure.

      60 60 In general, Pappas, “The Independent Sector and the Tax Law: Defining Charity in an Ideal Democracy,” 64 S. Cal. L. Rev. 461 (Jan. 1991).There is another rationale for tax exemption, known as the inherent tax rationale. See Tax-Exempt Organizations § 1.5. The essence of this rationale is that the receipt of what otherwise might be deemed income by a tax-exempt organization is not a taxable event, in that the organization is merely a convenience or means to an end, a vehicle whereby those participating in the enterprise may receive and expend money collectively in much the same way as they would if the money were expended by them individually. Although this rationale is not followed in the charitable organizations setting, it chiefly underlies the tax exemption for organizations such as social clubs, homeowners' associations, and political organizations.

      61 61 See Tax-Exempt Organizations ch. 14.

      62 62