The Daily Caller
written by Jeff Poor
Friday May 17, 2013
Long before the Internal Revenue Service revealed it had improperly targeted conservative 501(c)(4) groups, a group of Democratic senators led by New York Sen. Chuck Schumer urged the IRS to do just that.
The IRS’s admission last Friday that it had singled out tea party and other groups for extra audits and delays has raised concerns that President Barack Obama’s administration quietly attempted to stymy opponents through intimidation. But many prominent Democrats — including Montana Sen. Max Baucus, Americans United for the Separation of Church and State and the New York Times editorial board — had been publicly calling for tighter restrictions on 501(c)(4) groups affiliated with the tea party and conservatives.
Last year, Schumer, along with Democratic Sens. Michael Bennet, Sheldon Whitehouse, Jeff Merkley, Tom Udall, Jeanne Shaheen and Al Franken, penned a letter calling on the agency to cap the amount of the political spending by groups masquerading as “social welfare organizations.”
A press release from Schumer’s office dated March 12, 2012 laid out the terms of the letter:
The senators said the lack of clarity in the IRS rules has allowed political groups to improperly claim 501(c)4 status and may even be allowing donors to these groups to wrongly claim tax deductions for their contributions. The senators promised legislation if the IRS failed to act to fix these problems.“We urge the IRS to take these steps immediately to prevent abuse of the tax code by political groups focused on federal election activities. But if the IRS is unable to issue administrative guidance in this area then we plan to introduce legislation to accomplish these important changes,” the senators wrote.
The letter cited a March 7, 2012 New York Times article by Jonathan Weisman that suggested donations to groups like American Crossroads and Priorities USA could be tax deductible, which was a primary concern of those senators at the time.
A number of those senators participated in a press conference about their efforts on March 21, 2012, and Franken spoke out about what he called lack of oversight of 501(c)(4) status.
“I think that there hasn’t been enforcement by the FEC and the IRS, and so there are entities that are taking a 501(c)4 status, and under that they’re supposed to have more than half of their activity be non-political,” Franken said. “That’s pretty hinky. I mean, they really aren’t doing that, and that I think there needs to be a look at that — that even under the laws that already exist, there are people who should be disclosing who aren’t. And I think that is where we’re seeing the effect of — lack of effective enforcement and just oversight.”
Click HERE to be directed to Senator Charles E. Schumer's website with IRS letter displayed. Titled, "SENATE DEMOCRATS URGE IRS TO IMPOSE STRICT CAP ON POLITICAL SPENDING BY NONPROFIT GROUPS—VOW LEGISLATION IF AGENCY DOESN’T ACT" dated March 12, 20123
Dear Commissioner Shulman:
We write to ask the Internal Revenue Service (“IRS”) to immediately change the administrative framework for enforcement of the tax code as it applies to groups designated as “social welfare” organizations. These groups receive tax and other advantages under section 501(c)(4) of the Internal Revenue Code (hereinafter, “IRC” or the “Code”), but some of them also are engaged in a substantial amount of political campaign activity. As you know, we sent a letter last month expressing concerns about the 501(c)(4) issue; an investigation this week by the New York Times has uncovered new, specific problems on how c)4)s conduct business. We wanted to address those new concerns in this letter.
IRS regulations have long maintained that political campaign activity by a 501(c)(4) entity must not be the “primary purpose” of the organization. These regulations are intended to implement the statute, which requires that such organizations be operated exclusively for the public welfare. But we think the existing IRS regulations run afoul of the law since they only require social welfare activities to be the 'primary purpose' of a nonprofit when the Code says this must be its 'exclusive' purpose. In recent years, this daylight between the law and the IRS regulations has been exploited by groups devoted chiefly to political election activities who operate behind a facade of charity work.
A related concern, raised in a March 7th New York Times article, concerns whether certain nonprofits may be soliciting corporate contributions that are then treated by the company as a business expense eligible for a tax deduction. The Times wrote: “Under current law, there is little to no way to tell whether contributions are being deducted, especially because many of the most political companies are privately held.” This potential abuse distorts the objectives of vital revenue mechanisms and undermines the faith that we ask citizens to place in their electoral system.
We propose that the IRS make three administrative changes to curtail these questionable practices and bring IRS tax regulations back into alignment with the letter and spirit intended by those who crafted the Code:
We write to ask the Internal Revenue Service (“IRS”) to immediately change the administrative framework for enforcement of the tax code as it applies to groups designated as “social welfare” organizations. These groups receive tax and other advantages under section 501(c)(4) of the Internal Revenue Code (hereinafter, “IRC” or the “Code”), but some of them also are engaged in a substantial amount of political campaign activity. As you know, we sent a letter last month expressing concerns about the 501(c)(4) issue; an investigation this week by the New York Times has uncovered new, specific problems on how c)4)s conduct business. We wanted to address those new concerns in this letter.
IRS regulations have long maintained that political campaign activity by a 501(c)(4) entity must not be the “primary purpose” of the organization. These regulations are intended to implement the statute, which requires that such organizations be operated exclusively for the public welfare. But we think the existing IRS regulations run afoul of the law since they only require social welfare activities to be the 'primary purpose' of a nonprofit when the Code says this must be its 'exclusive' purpose. In recent years, this daylight between the law and the IRS regulations has been exploited by groups devoted chiefly to political election activities who operate behind a facade of charity work.
A related concern, raised in a March 7th New York Times article, concerns whether certain nonprofits may be soliciting corporate contributions that are then treated by the company as a business expense eligible for a tax deduction. The Times wrote: “Under current law, there is little to no way to tell whether contributions are being deducted, especially because many of the most political companies are privately held.” This potential abuse distorts the objectives of vital revenue mechanisms and undermines the faith that we ask citizens to place in their electoral system.
We propose that the IRS make three administrative changes to curtail these questionable practices and bring IRS tax regulations back into alignment with the letter and spirit intended by those who crafted the Code:
First, we urge the IRS to adopt a bright line test in applying its “primary purpose” regulation that is consistent with the Code’s 501(c)(4) exclusivity language. The IRS currently only requires that the purpose of these non-profits be “primarily” related to social welfare activities, without defining what “primarily” means. This standard should be spelled out more fully by the IRS. Some have suggested 51 percent as an appropriate threshold for establishing that a nonprofit is adhering to its mission, but even this number would seem to allow for more political election activity than should be permitted under the law. In the absence of clarity in the administration of section 501(c)(4), organizations are tempted to abuse its vagueness, or worse, to organize under section 501(c)(4) so that they may avail themselves of its advantages even though they are not legitimate social welfare organizations. If the IRS does not adopt a bright line test, or if it adopts one that is inconsistent with the Code’s exclusivity language, then we plan to pursue legislation codifying such a test.
Second, such organizations should be further obligated to document in their 990 IRS form the exact percentage of their undertakings dedicated to “social welfare.” Organizations should be required to “show their math” to demonstrate that political election activities and other statutorily limited or prohibited activities do not violate the “primary purpose” regulation.
Third, 501(c)(4) organizations should be required to state forthrightly to potential donors what percentage of a donation, if any, may be taken as a business expense deduction. As the New York Times reported in its March 7tharticle, some of these organizations do not currently inform donors whether a contribution is tax deductible as a business expense at all.
The IRS should already possess the authority to issue immediate guidance on this matter. We urge the IRS to take these steps immediately to prevent abuse of the tax code by political groups focused on federal election activities. But if the IRS is unable to issue administrative guidance in this area then we plan to introduce legislation to accomplish these important changes.
Sincerely,
Senators Charles E. Schumer, Michael Bennet, Sheldon Whitehouse, Jeff Merkley, Tom Udall, Jeanne Shaheen and Al Franken
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