The Tax Law of Charitable Giving. Bruce R. Hopkins

       It does not participate in or intervene in (including the publishing or distributing of statements) any political campaign on behalf of (or in opposition to) any candidate for public office.³¹¹ The prohibition on efforts to engage in political campaign activities by charitable organizations is discussed extensively elsewhere.³¹²

      There are, therefore, two dimensions to the term charitable in this context. One is the definition of the term charitable as one of seven categories of charitable donee status (as reflected in the preceding discussion). The other is a definition of the term charitable that embraces all categories of charitable donees.

As to the latter definition, the law is clear that the concept of charity is an overarching one that encompasses all of the specific categories, such as religion and education. This is because U.S. tax law precepts of charity are based on common law standards, which the courts have held must inform the statutory uses of the term. For example, one court observed that “we must look to established [trust] law to determine the meaning of the word ‘charitable.’”³¹³ Likewise, the court subsequently wrote that Congress intended to apply these tax rules “to those organizations commonly designated charitable in the law of trusts.”³¹⁴ Another court noted that “the term ‘charitable’ is a generic term and includes literary, religious, scientific, and educational institutions.”³¹⁵ The U.S. Supreme Court held that “Congress, in order to encourage gifts to religious, educational, and other charitable objects, granted the privilege of deducting . . . gifts from gross income.”³¹⁶

One of the reasons that the term charitable has such an all-inclusive gloss in this definitional setting is that the Supreme Court has held that all organizations that wish to qualify as charitable entities—both for tax exemption and for charitable donee purposes—must adhere to a public policy doctrine. In so doing, the Court wrote that each of these entities must meet “certain common law standards of charity” and that “[t]he form and history of the charitable exemption and deduction sections of the various income tax acts reveal that Congress was guided by the common law of charitable trusts.”³¹⁷ The Court said that charitable organizations must “be in harmony with the public interest” and “must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred.”³¹⁸ While recognizing the IRS's authority to determine what is public policy, the Court held that “a declaration that a given institution is not ‘charitable’ should be made only where there can be no doubt that the activity involved is contrary to a fundamental public policy.”³¹⁹ (In the factual setting of the case, the Court concluded that racial discrimination in education is contrary to public policy and that an educational institution that does not conform to this policy is not charitable.)

These findings were presaged in a Supreme Court observation made more than 100 years earlier: “A charitable use, where neither law nor public policy forbids, may be applied to almost anything that tends to promote the well-doing and well-being of social man.”³²⁰

      Nonetheless, the specific legal meanings of the term charitable are to be found in the narrower of the two definitions, which is an amalgam of court opinions, Department of Treasury regulations, and IRS rulings. Other bodies of law, although not as extensive, have evolved from use of the other terms, principally religious, educational, and scientific.

Charitable Organizations. There are several ways for an organization to be considered a charitable entity for purposes of the law of charitable giving.³²¹ These include:

       Relief of poverty. This is the most basic and historically founded form of charitable activity. The tax regulations define the term charitable to include “[r]elief of the poor and distressed or of the underprivileged.”³²² Assistance to the indigent is undoubtedly the most generally understood and accepted form of charitable endeavor.

       Advancement of religion. The scope of this category of charitable activity is imprecise, due to the recognition of religious activities as a separate basis for tax-exempt status.³²³ Organizations that are charitable because they advance religion generally are those that support or otherwise assist religious organizations.³²⁴

       Advancement of education. Likewise, the scope of this category of charitable activity is imprecise, due to the recognition of educational activities as a separate basis for tax-exempt status.³²⁵ Organizations that are charitable because they advance education generally are those that support or otherwise assist educational organizations.³²⁶

       Advancement of science. Similarly, the scope of this category of charitable activity is imprecise, due to the recognition of scientific activities as a separate basis for tax-exempt status.³²⁷ Organizations that are charitable because they advance science generally are those that support or otherwise assist scientific organizations.³²⁸

       Lessening of the burdens of government. An organization can be charitable if it lessens the burden of a government, where the governmental unit considers the burden to be lessened to be among the various burdens it has assumed. Organizations of this type either provide services directly in the context of government activity or provide support to a governmental agency or department.³²⁹

       Promotion of social welfare. An organization can be charitable if it promotes social welfare; this is one of the broadest categories of charitable organizations. This purpose includes activities such as lessening neighborhood tensions, eliminating prejudice and discrimination, defending human and civil rights secured by law, and combating community deterioration and juvenile delinquency.³³⁰

       Community beautification and maintenance. An organization can be charitable by reason of the fact that its purpose is community beautification and maintenance and the preservation of natural beauty.³³¹

       Promotion of health. An organization can be charitable because it engages in activities that promote health.³³² This purpose embraces the establishment and maintenance of hospitals, clinics, homes for the aged, and the like.

       Promotion of the arts. An organization may be charitable because it engages in one or more activities that promote the arts. This purpose includes the establishment and maintenance of theaters, the promotion of public appreciation of one of the arts, and the promotion and encouragement of the talent and ability of young artists.³³³