The Tax Law of Charitable Giving / Edition 4

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Overview

Examines the highly complex set of rules and regulations which govern charitable giving. Beginning with an introductory overview, it provides comprehensive information on the laws, definitions and forms of various charitable gifts, ranging from art to real estate and beyond. Includes information on the most current tax laws and explains the fundamentals of establishing and maintaining a giving program. Additional topics include limitations on charitable giving; estate and tax considerations; special gift situations; gifts to charitable remainder and lead trusts; gifts to pooled income funds; charitable gift annuities; gifts using life insurance; administration of charitable giving; disclosure rules; special events and fund-raising regulations. Subscribers to receive annual supplements.
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Editorial Reviews

From the Publisher
"This supplement integrates the applicable parts of the American Jobs Creation Act and the Working Families Tax Relief Act, both of 2004, into The Tax Law of Charitable Giving. A table of contents clearly lays out the supplemental materials and where they fit into the 2005 text. Hopkins provides a preface summarizing recent cases, rulings, tax laws, and trends, including the IRS revision of Form 990 and its impact on charitable organizations." (Book News, May 2009)
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Product Details

  • ISBN-13: 9780470560600
  • Publisher: Wiley, John & Sons, Incorporated
  • Publication date: 3/8/2010
  • Edition number: 4
  • Pages: 840
  • Product dimensions: 7.10 (w) x 10.00 (h) x 1.70 (d)

Meet the Author

Bruce R. Hopkins is a senior partner in the law firm of Polsinelli Shalton Flanigan Suelthaus PC, practicing in the firm’s Kansas City, Missouri, and Washington, D.C., offices. He specializes in the field of charitable giving. His practice ranges over the entirety of tax matters involving charitable giving (including planned giving) and tax-exempt organizations, with emphasis on the formation of nonprofit organizations, acquisition of recognition of tax-exempt status for them, the private inurement and private benefit doctrines, the intermediate sanctions rules, legislative and political campaign activities issues, public charity and private foundation rules, unrelated business planning, use of exempt and for-profit subsidiaries, joint venture planning, tax shelter involvement review of annual information returns, Internet communications developments, and fundraising law issues. Mr. Hopkins served as chair of the Committee on Exempt Organizations, Tax Section, American Bar Association; chair, Section of Taxation, National Association of College and University Attorneys; and president, Planned Giving Study Group of Greater Washington, D.C. Mr. Hopkins is the series editor of Wiley’s Nonprofit Law, Finance, and Management Series. In addition to The Tax Law of Charitable Giving, Third Edition, he is the author of Charitable Giving LawMade Easy; IRS Audits of Tax-Exempt Organizations: Policies, Practices, and Procedures; The Law of Tax-Exempt Organizations, Ninth Edition; The Planning Guide for the Law of Tax-Exempt Organizations Strategies and Commentaries; The Law of Fundraising, Third Edition; The Tax Law of Associations; The Tax Law of Unrelated Business for Nonprofit Organizations; The Nonprofits’ Guide to Internet Communications Law; The Law of Intermediate Sanctions: A Guide for Nonprofits; Starting and Managing a Nonprofit Organization: A Legal Guide, Fourth Edition; Nonprofit Law Made Easy; 650 Essential Nonprofit Law Questions Answered; The First Legal Answer Book for Fund-Raisers; The Second Legal Answer Book for Fund-Raisers; The Legal Answer Book for Nonprofit Organizations; The Second Legal Answer Book for Nonprofit Organizations; and The Nonprofit Law Dictionary; and is the co-author, with Jody Blazek, of Private Foundations: Tax Law and Compliance, Second Edition; also with Ms. Blazek, The Legal Answer Book for Private Foundations; and with Thomas K. Hyatt, The Law of Tax-Exempt Healthcare Organizations, Second Edition. He also writes Bruce R. Hopkins’ Nonprofit Counsel, a monthly newsletter published by John Wiley & Sons.

Mr. Hopkins earned his J.D. and L.L.M. degrees at the GeorgeWashington University and his B.A. at the University of Michigan. He is a member of the bars of the District of Columbia and the state of Missouri. Mr. Hopkins the 2007 Outstanding Nonprofit Lawyer Award (Vanguard Lifetime Achievement Award) from the American Bar Association, Section of Business Law, Committee on Nonprofit Corporations. He is listed in The Best Lawyers in America, Nonprofit Organizations/Charities Law, 2007–2009.

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Read an Excerpt

Although it may sound like a horrendous conceit, I marvel at this book. The very title suggests a subject that ought to be confined to a pamphlet: The Tax Law of Charitable Giving. The principal reason for my amazement: How can something as simple and innocent as charitable giving generate so much law? It is, I suppose, a hallmark of our society; matters are quite complicated in the United States these days, and so too is the matter of transferring money and property to charity.

There is another reason, one much more personal. In the early 1990's, this book had been on my mind for a long time. It had been written, in fits and starts, many times over the years, with the manuscript pages ending up accumulating in this storage box and that file. It took some gentle prodding by the wonderful people at John Wiley & Sons—specifically, for this project, Jeffrey Brown (long since promoted to Wiley's higher echelons) and Marla Bobowick (now working in the charitable sector)—to get me going on the writing of the book. The first edition appeared in 1993. Martha Cooley skillfully continued in the fashion of her predecessors; the second edition has arrived.

It is not that I did not want to write this book; that is certainly not the case. In fact, I long dreamed of—it seems rather immodest to say it—a trilogy. This idea reflects what is now over 30 years of law practice entirely in the realm of nonprofit organizations. I have come to see the law uniquely affecting these organizations as falling into three fields: the law of tax-exempt organizations, the law of fund-raising, and the law of charitable giving.

By the time the pressure was mounting to write a book on charitable giving, the books on tax-exempt organizations law and fund-raising law had been published (by Wiley, of course). Certainly, the time had come to begin (or re-begin) the writing of the third book. But I found my writing time diverted to other subjects (such as book supplements and other books); postponement of the charitable giving book had become the order of the day.

I have been writing books for Wiley for over 20 years. (The first book, the third edition of The Law of Tax-Exempt Organizations, was published in 1979. The predecessor to The Law of Fund-Raising was published in 1980.) These and other Wiley books I have been involved with entail the writing of annual supplements. As the 1980s unfolded, I discovered something unusual about myself: I enjoy writing supplements. (There is something perversely challenging about simultaneously correcting prior mistakes, and capturing and integrating subsequent developments.)

Thus, while writing supplements to the tax-exempt organizations and fund-raising books, I found myself wanting to write supplements for a book on the law of charitable giving. This was (and is) because of the immense swirl of developments in the law taking place in all three arenas. The problem, however, was obvious: One cannot supplement a book that does not exist—or exists only in the author's mind.

So, I set about to write what became the first edition of this book. This is not to imply that I wrote it just so I could justify the writing of supplements for it (although a case can be made that that is a partial reason). I wrote the book because I was impressed with the volume of law being generated in the field, and I wanted readers to have a book that explains the basics and new developments in a complete and comprehensive manner.

The law on the subject of charitable giving has become intricate, and there is no let up in sight. Those who need to keep up with the law in this area deserve a single place to go to find both the fundamentals and recent developments. With the trilogy now firmly in place (all three books being annually supplemented), the law of charitable giving can also be placed in an appropriate context.

The first edition captured the state of the law of charitable giving as of the close of 1992. Not surprisingly, the field exploded into new realms even as the book was being published. The Omnibus Budget Reconciliation Act of 1993 introduced law that significantly added to the administrative burdens of charitable organizations: more stringent substantiation rules and disclosure rules in the case of quid pro quo gifts. This legislation brought other revisions of the law of charitable giving, as did the Small Business Job Protection Act of 1996, the Tax-payer Relief Act of 1997, and the IRS Restructuring and Reform Act of 1998. Other major tax bills are unavoidable. In recent years, Congress has also revised the antitrust and securities laws in the context of charitable giving.

The Treasury Department and the IRS have also been quite busy in our field, promulgating much in the way of regulations, private letter rulings, and technical advice memoranda. Rest assured that much more is coming. The courts as well continue to churn out opinions that shape and reshape the law of charitable giving. Overall, then, much more law is on the way, keeping this field alive and sometimes confusing.

This book is offered as a vehicle to survey the law and minimize the confusion.

One of the frustrating aspects about writing books of this nature is the helplessness experienced when interesting and important developments occur once the book is in publication, too late to be included. We were ready to add the many aspects of new law that would have been introduced had the Taxpayer Refund and Relief Act of 1999 (H. R. 2488) been enacted; that legislation was, instead, vetoed on September 23, 1999.

By contrast, the discussion of the tax treatment of distributions to noncharitable beneficiaries from charitable remainder trusts (§ 12.5) does not reflect the issuance of proposed regulations to curb certain abusive uses of these trusts (Reg. 116125-99). These regulations address situations where a remainder trust (dubbed a "chutzpah" trust because of the audacity of the plan) is used to convert appreciated property into money while avoiding tax on the gain from the sale of the assets. In essence, there is borrowing (or a similar transaction) within the trust, so that the distribution to the beneficiary can be regarded as out of the fourth tier, which is nontaxable proceeds. Basically, the trust will be treated having sold, in the year for which the distribution is due, the appropriate portion of the trust assets. These rules, when finalized, will apply to distributions after October 18, 1999.

Likewise, the material about charitable split-interest insurance plans legislation (§ 17.6( c)) needs augmentation: Just before adjournment in November 1999, Congress passed legislation (H. R. 1180), which contains the rules that severely discourages charities' and their supporters' participation in these plans. The effective date of February 8, 1999, was retained.

Then, there is the marvelous case of Herman v. United States, decided by the U. S. district court for the Eastern District of Tennessee, enabling donors to obtain a charitable deduction for a gift of property, where they bought the property in a bankruptcy proceeding, held it for a little over one year, and had their deduction based on the fair market value of the property at the time. The deduction value was 25 times the purchase value. I am really disappointed that a discussion of that decision cannot be in this book. I guess it is time to start working on the supplement.

If readers wonder whether my using these occasions (the writing of prefaces) to praise the outstanding folks at John Wiley & Sons, Inc., is simply a routine courtesy, please believe otherwise. They have been marvelously supportive (and adept at enforcing deadlines). The publisher's devotion to the production of quality publications in the nonprofit field warrants unstinting praise. The Non-profit Law, Finance, and Management Series is an unparalleled collection of books in the area. I am honored to be among those who have been and are contributing to this substantial body of knowledge.

Thus, my sincere thanks to my editor, Martha Cooley, and to Robin Goldstein for their assistance and support in connection with this project.

Bruce R. Hopkins
December 1999

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Table of Contents

Ch. 1 Charitable giving law : basic concepts 3
Ch. 2 The United States tax system : an overview 27
Ch. 3 Fundamental concepts 57
Ch. 4 Gifts of money and property 125
Ch. 5 Fundamentals of planned giving 145
Ch. 6 Timing of charitable deductions 171
Ch. 7 Percentage limitations 187
Ch. 8 Estate and gift tax considerations 223
Ch. 9 Special gift situations 267
Ch. 10 Other aspects of deductible giving 355
Ch. 11 Valuation of partial interests 395
Ch. 12 Charitable remainder trusts 405
Ch. 13 Pooled income funds 477
Ch. 14 Charitable gift annuities 497
Ch. 15 Other gifts of remainder interests 505
Ch. 16 Charitable lead trusts 515
Ch. 17 Gifts of and using life insurance 527
Ch. 18 International giving by individuals during lifetime 547
Ch. 19 International giving by individuals through estates 559
Ch. 20 International giving by corporations 567
Ch. 21 Receipt, recordkeeping, and reporting requirements 581
Ch. 22 Disclosure requirements 605
Ch. 23 Special events and corporate sponsorships 617
Ch. 24 State fundraising regulation 627
App. A Sources of the law 641
App. B Internal Revenue Code sections 649
App. C Form 8283 - noncash charitable contributions 651
App. D Form 8282 - donee information return 653
App. E Inflation-adjusted insubstantiality threshold - $50 test 655
App. F Inflation-adjusted insubstantiality threshold - $25 test 657
App. G Inflation-adjusted low-cost article definition 659
App. H Monthly federal interest rates used in valuing partial interests IRC 7520 661
App. I Deemed rates of return for transfers to new pooled income funds 667
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