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Is gift earmarked for lobbying deductible?

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Is gift earmarked for lobbying deductible?

Is a gift given to a 501(c)(3) charitable organization and earmarked for its lobbying activity deductible by the donor as a charitable contribution?

Treasury Regulations specifically provide that gifts to charities for lobbying purposes are not deductible.  The rule seems to be clear, although the rationale is not entirely so.

The IRS issued a Revenue Ruling in 1980 (Rev. Rul. 80-275) saying, without any articulated rationale or basis, that no deduction is allowed for gifts earmarked for lobbying activities.  It cites a series of prior published rulings dealing with gifts earmarked for the benefit of individuals or for activities it does not deem charitable.

In a 1984 Continuing Professional Education text for IRS examiners, the IRS told its examiners that a gift that is not made for a charitable purpose is not deductible, and used contributions for lobbying as the example.

Interestingly, IRS Publication 526 on Charitable Contributions does not contain a blanket statement that gifts for lobbying purposes are not deductible.  Its only mention of lobbying is in a section on gifts that may not be deductible because the donor benefits from the transaction.  It lists lobbying gifts under this general lead in:  “If you receive or expect to receive a financial or economic benefit as a result of making a gift to a qualified organization, you cannot deduct the part of the contribution that represents the value of the benefit you receive.”  The “quid pro quo” rationale is vastly different from the non-charitable activity rationale that appears to be at the heart of the original ruling.

Congress has limited business deductions under Section 162(e) of the Tax Code for any direct lobbying on state or federal (though not local) legislation.  In 1993, it added Section 170(f)(9) which prevents a business from deducting a gift to a charitable organization that lobbies on issues “of direct financial interest to the donor’s trade or business, if a principal purpose of the contribution was to avoid Federal income tax by securing a deduction for such activities under this section which would be disallowed by reason of section 162(e) if the donor had conducted such activities directly.”  This is an anti-avoidance rule that apparently applies whether or not the gift is earmarked for lobbying.  But it also seems based on the economic benefit rationale for issues of “direct financial interest” to the donor.

It certainly seems arguable that a gift earmarked for some types of lobbying — seeking government funding for humanitarian relief, for example — could be both charitable and without economic return to the donor.  But a donor would most likely have to argue that position in court, and not with an IRS examiner.

A public charity can avoid the deductibility issue for most donors, of course, by soliciting for its general purposes, which may include some specified lobbying activity within the limits of 501(c)(3).  But if the donor or the charity specifies the lobbying purpose of the gift, the IRS will undoubtedly deny the deduction if it sees the earmarking on audit.

Tuesday, October 22, 2013

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