The Tax Law of Charitable Giving. Bruce R. Hopkins

is made to or for the use of a charitable organization³⁵

       To a gift of ordinary income property prior to application of the appropriate percentage limitation(s)³⁶

(c) Special Rules of Inapplicability

This deduction reduction rule does not apply to reduce the amount of the charitable contribution when, by reason of the transfer of the contributed property, ordinary income or capital gain is recognized by the donor in the same tax year in which the contribution is made.³⁷ Thus, if recognition of the income or gain occurs in the same tax year in which the contribution is made, this rule is inapplicable when income or gain is recognized upon:

       The transfer of an installment obligation to a charitable organization,³⁸

       The transfer of an obligation issued at a discount to a charitable organization,³⁹ or

       The assignment of income to a charitable organization.⁴⁰

Also, this deduction rule does not apply to a charitable contribution by a nonresident alien individual or a foreign corporation of property, the sale or other disposition of which within the United States would have resulted in gain that is not effectively connected with the conduct of a trade or business in the United States.⁴¹

§ 3.5 CERTAIN CONTRIBUTIONS OF CAPITAL GAIN PROPERTY

In general, contributions of long-term capital gain property to public charitable organizations are deductible, with the federal income tax charitable contribution deduction computed on the basis of the fair market value of the property.⁴²

When contributions are made to a charitable organization that is not a public charitable organization, however, a deduction reduction rule applies. Nonetheless, this rule does not apply with respect to gifts to a private operating foundation, a pass-through foundation, and a common fund foundation.⁴³

(a) General Deduction Reduction Rule

The general deduction reduction rule is as follows: When a charitable gift of capital gain property is made, the amount of the charitable deduction that would otherwise be determined must be reduced by the amount of gain that would have been long-term capital gain if the property contributed had been sold by the donor at its fair market value, determined at the time of the contribution, when the gift is to or for the use of a private foundation (with the aforementioned three exceptions).⁴⁴

      In these circumstances, if the contributed property is capital gain property, the charitable deduction that would otherwise be determined must be reduced by the amount of the unrealized appreciation in value. The charitable deduction under these rules is confined to the basis in the property.

This rule applies (1) irrespective of whether the donor is an individual or a corporation, (2) irrespective of whether the charitable contribution is made to or for the use of a charitable organization,⁴⁵ and (3) to a gift of property prior to application of the appropriate percentage limitation(s).⁴⁶

(b) Qualified Appreciated Stock

An exception to the deduction reduction rule is that it does not apply in the case of a contribution of qualified appreciated stock.⁴⁷ That is, when this exception is applicable, the charitable deduction for a contribution of stock to a private foundation is based on the fair market value of the stock at the time of the gift.

Basically, the term qualified appreciated stock means any stock for which (as of the date of the contribution) market quotations are readily available on an established securities market, and that is capital gain property.⁴⁸

In the sole case on the point, a court held that stock contributed to a private foundation did not give rise to a charitable deduction based on its fair market value, because the stock did not constitute qualified appreciated stock.⁴⁹ The stock involved was that of a bank holding company. The shares were not listed on the New York Stock Exchange, the American Stock Exchange, or any city or regional stock exchange, nor were the shares regularly traded in the national or any regional over-the-counter market for which published quotations are available. The shares were not those of a mutual fund. A brokerage firm occasionally provided a suggested share price based on the new asset value of the bank. The procedure for someone wishing to purchase or sell shares of the corporation was to contact an officer of the bank or a local stock brokerage firm specializing in the shares. An attempt would be made to match a potential seller with a potential buyer; the shares were not frequently sold. The court held that the stock could not constitute qualified appreciated stock because the market quotations requirement had not been satisfied.⁵⁰

The IRS ruled that stock to be contributed to a private foundation constituted qualified appreciated stock, with the agency concluding that market quotations for the stock are readily available on an established securities market due to the accessibility to them on Internet financial sites.⁵¹ The stock in this instance was not traded on a stock exchange; nonetheless, these sites are “well known and heavily accessed.” The market quotations for this stock were found to be published, in that “enabling virtually anyone in the world with access to the Internet to view current and historical market quotations for [this] stock means that the possibility is maximized that someone would detect a situation in which the market quotations are not reasonable.” The IRS concluded that the market quotations for this stock are readily available, noting the “ease with which anyone can access current and historical market quotations on the [Over-the-Counter Bulletin Board (OTCBB)] Internet site and other financial Internet sites.” The OTCBB was deemed by the IRS to be an established securities market; the stock involved was found to be capital gain property.

The term qualified appreciated stock does not include any stock of a corporation contributed by a donor to a private foundation to the extent that the amount of stock contributed (including prior gifts of the stock by the donor) exceeds 10 percent (in value) of all of the outstanding stock of the corporation.⁵² In making this calculation, an individual must take into account all contributions made by any member of their family.⁵³

The IRS, from time to time, issues private letter rulings as to whether stock constitutes qualified appreciated stock.⁵⁴

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