In Uncategorized on 11/17/2015 at 17:08

Two little words spark a 108-page full-dress T. C. opinion from Judge Gale. The two little words? “Refers to.” The full-dress T. C. opinion? Loren E. Parks, 145 T. C. 12, filed 11/17/15.

And the two little words “refers to” refers to legislative proposals, as to which a private foundation attempts to influence legislation and/or the opinion of the general public, and thereby incurs sundry excise taxes. Of course, the degree of specificity of the reference is nowhere explicitly spelled out.

And the opinion spends a lot of time on one word: “educational.” What is “education” as opposed to advocacy?

Judge Gale is at pains to point out that this is not a Citizens United v. Fed. Elec. Comm., 558 U. S. 310 (2010) case, because the issue here is the excise tax payable by the tax-exempt private foundation and its manager, to discourage subsidies of political speech, rather than the outright prohibition thereof.

Specialists should read this case for Judge Gale’s lengthy exegesis of Rev. Proc. 86-43, 1986-2 C.B. 729. What is “educational,” rather than advocacy, gets a thorough going-over.

Finally, the Regs are not unconstitutionally vague. It’s true that the standard is somewhat looser than the strict scrutiny of Citizens United, but there direct regulation of speech and criminal penalties were involved. Here, only the excise taxes, and no subsidy for political speech.

Most of the private foundation’s radio blasts incur the excise tax, but three slip through the “educational” gate.

Me, I’m a simple guy, so I couldn’t tell the difference. Maybe that’s why I don’t give “a reasoned written legal opinion” to private foundations or their managers when these want to duck the excise taxes, per Reg. 53.4945-1(a)(2)(vi), of which sub-subsection’s existence and purport I was, until now, delightfully unaware.

But if you do give such opinions, practitioner, read this case. Mark, learn and inwardly digest it, because here be dragons.

  1. […] And of course Lew Taishoff has something – titled Two Little Words. […]


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