December 5, 2022

Volume XII, Number 339


December 05, 2022

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IRS Steps into Fray on Political Activities

The Internal Revenue Service (IRS) recently issued two private letter rulings (PLRs) that may be interesting for tax-exempt organizations that engage in political activity.

In the first ruling, the IRS held that a company could not deduct payments made to charity under a PAC matching contribution program as an “ordinary and necessary business expense.” While the Internal Revenue Code already prohibits income tax deductions for political contributions, the company requested a PLR holding that the charitable contributions are deductible business expenses.  In rejecting the deduction, the PLR reasoned that “the contributions to [the] PAC and [the company’s] matching contributions are inextricably linked,” because the company would not have donated to the charity but for the employees’ contributions to the PAC.   Plus, the letter held, the matching program is intended to incentivize contributions to the PAC,  thus the charitable contributions are clearly “in connection with a political campaign” and not deductible.

The PLR comes on the heels of the FEC’s surprise approval of 2-to-1 corporate charitable PAC match programs this past January and provides some clarity into the tax implications of such matching programs. While campaign finance law now clearly allows corporations to grow their PACs by sponsoring charitable matching programs to incentivize giving, these programs should be viewed with eyes wide open: charitable contributions that help pad a corporate PAC’s coffers are not deductible business expenses.

In a separate ruling, the IRS issued a PLR late last year formally rejecting an organization’s qualification as a 501(c)(4) social welfare organization because it failed to adequately explain what social welfare activities it would undertake.  The organization  applied for (c)(4) status, claiming that its sole activity in the prior year was to hold a candidate forum and that it had no future activities planned.  The organization also acknowledged that it planned to spend money to influence elections, although that was not its primary purpose. The organization repeatedly ignored IRS requests for additional information to verify the social welfare activities of the organization.

Unlike 501(c)(3) charitable organizations, 501(c)(4) organizations may conduct some political activity as long as it is not the organization’s primary purpose.  501(c)(4)s are a common vehicle for lobbying activity, in the form of direct and grassroots advocacy, and some political expenditures; however, the PLR is an important reminder that a (c)(4) must engage in some social welfare activities, which do not include intervention in campaigns for or against candidates.

The PLR also emphasizes the importance of prospectively explaining to the IRS the exempt activities the organization plans to undertake.  While the letter acknowledged that “candidate forums” and similar activities “may meet the definition of social welfare by furthering voter education purposes,” it still faulted the organization for failing to describe its “planned activities for the future.”

Finally, the letter serves as a cautionary tale for (c)(4)s that failure to respond to questions by the IRS could result in the denial of tax-exempt status.  We note that the organization had the option to “self-declare” tax-exempt status as a 501(c)(4) organization rather than filing an application with the IRS.

© 2022 Covington & Burling LLPNational Law Review, Volume VI, Number 208

About this Author

Susan Leahy, Covington Burling,Tax attorney
Of Counsel

Susan Leahy advises tax-exempt and not-for-profit organizations on a wide variety of matters. She counsels clients on Internal Revenue Code, Treasury regulations, rules regarding private benefit, self-dealing, inurement, unrelated business income tax, intermediate sanctions, relationships with for-profit organizations, joint ventures, corporate sponsorship, lobbying, and political activities.

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Matthew S. Shapanka, Covington, regulatory and policy matters lawyer

Matthew Shapanka represents and counsels corporate, political, and individual clients in criminal, regulatory, and policy matters before government agencies and Congress. He also advises candidates, companies, PACs, nonprofits, and high net worth individuals on compliance with federal and state campaign finance, election, and lobbying laws.

Prior to attending law school, Mr. Shapanka worked as a research analyst in the Massachusetts Recovery & Reinvestment Office, where he worked on all aspects of state-level policy, communications, and compliance for federal...

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