The Tax Law of Charitable Giving. Bruce R. Hopkins

subject of the tax aspects of charitable giving is contained in the Internal Revenue Code and in the interpretations of that body of law found in court opinions, Treasury Department and Internal Revenue Service (IRS) regulations, and IRS public rulings. (Technically not law, pronouncements by the IRS on this subject may be found in private letter rulings, technical advice memoranda, and chief counsel advice memoranda.) This body of law is specific on various aspects of the law of charitable giving, as the pages of this book attest.

Despite this extensive treatment of these aspects of the law, there is a dramatic omission in the rules concerning charitable giving: The federal law is scarce as to the meaning of the word gift or contribution.¹ This is highly significant, because there obviously must be a gift before there can be a charitable gift (and one or more charitable contribution deductions).

(a) Perspectives

      There are two ways to view the concept of a charitable gift: from the standpoint of the contributor and from the standpoint of the recipient charity.

Contributor's Standpoint. Integral to the concept of the charitable contribution deduction, then, is the fundamental requirement that money or property transferred to a charitable organization be transferred pursuant to a transaction that constitutes a gift.² Just because money is paid or property is transferred to a charitable, educational, religious, or like organization does not necessarily mean that the payment or transfer is a gift. Consequently, when a university's tuition, a hospital's health care fee, or an association's dues are paid, there is no gift, and thus there is not a charitable deduction for the payment.³ These are situations in which the absence of a gift is because the payor received a material quid pro quo in exchange for the payment.⁴

Certainly, there is some law, most of it generated by the federal courts, as to what constitutes a gift. Basically, the meaning of the word gift has two elements: It is a transfer that is voluntary and is motivated by something other than consideration.⁵ Thus, the income tax regulations (promulgated in amplification of the business expense deduction rules) state that a transfer is not a contribution when it is made “with a reasonable expectation of financial return commensurate with the amount of the donation.”⁶ Instead, this type of payment is a purchase (of a product and/or a service). Thus, the IRS states that a contribution is:

A voluntary transfer of money or property that is made with no expectation of procuring financial benefit commensurate with the amount of the transfer.⁷

      The IRS follows another principle of law:

Where consideration in the form of substantial privileges or benefits is received in connection with payments by patrons of fund-raising activities, there is a presumption that the payments are not gifts.⁸

A corollary of these seemingly simple rules is that, as these guidelines reflect, a single transaction can be partially a gift and partially a purchase, so that when a charitable organization is the payee, only the gift portion is deductible.⁹

In an oft-quoted passage, the Supreme Court observed that a gift is a transfer motivated by “detached or disinterested generosity.”¹⁰ Along this same line, the Court referred to a gift as a transfer made “out of affection, respect, admiration, charity or like impulses.”¹¹ A third element that is sometimes invoked in this context is donative intent.¹² This component of the definition is inconsistently applied.¹³ It is the most problematic of the three, inasmuch as it is usually difficult to ascertain what was transpiring in the mind of a donor at the time of a gift (if, in fact, that is what the transaction was); some courts struggle in an effort to determine the subjective intent of a transferor.¹⁴ The other two factors focus on the external circumstances surrounding the transaction, with emphasis on whether the putative donor received anything of value as a consequence of the putative gift.¹⁵

In one donative-intent case, a partnership was formed to assist a religious center, which was deeply in debt, by borrowing funds and purchasing the center and then leasing it back. Subsequently, the partnership transferred the center to a church after the center defaulted on the lease; a court ruled that the transfer to the church did not give rise to a charitable deduction because the partners' intent was to generate funds to satisfy the mortgage, rather than to benefit the church.¹⁶ By contrast, a court held that donors of a 20 percent interest in a parcel of real estate to a church had the requisite donative intent, even though they agreed to purchase the property and lease it back to the church.¹⁷ Also, donors were found to have donative intent in connection with a contribution of a scenic easement over a portion of their residential estate, even though they pursued a reconveyance of the easement following disallowance of a significant portion of the charitable deduction.¹⁸

Some aspects of the state of the law on this point, as reflected in another view of the Supreme Court, are that a “payment of money [or transfer of property] generally cannot constitute a charitable contribution if the contributor expects a substantial benefit in return.”¹⁹ This observation was made in the context of an opinion concerning a charitable organization that raised funds for its programs by providing group life, health, accident, and disability insurance policies, underwritten by insurance companies, to its members. Because the members had favorable mortality and morbidity rates, experience rating resulted in substantially lower insurance costs than if the insurance were purchased individually. Because the insurance companies' costs of providing insurance to the group were uniformly lower than the annual premiums paid, the companies paid refunds of the excess (dividends) to the organization; the dividends were used for its charitable purposes. Critical to the organization's fundraising efforts was the fact that it required its members to assign it all dividends as a condition of participating in the insurance program. The organization advised its insured members that each member's share of the dividends, less its administrative costs, constituted a tax-deductible contribution.

The Supreme Court, however, disagreed with that conclusion. It found that none of the “donors” knew that they could have purchased comparable insurance for a lower cost; the Court thus assumed that the value of the insurance provided by the organization at least equaled the members' premium payments. The Court concluded that these individuals failed to demonstrate that they intentionally gave away more than they received. The Court wrote: “The sine qua non of a charitable contribution is a transfer of money or property without adequate consideration. The taxpayer, therefore, must at a minimum demonstrate that he [or she] purposefully contributed money or property in excess of the value of any benefit he [or she] received in return.”²⁰