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Abstract: Teaching intelligent design in public schools has become an extremely controversial, and highly publicized, educational prospect that is just beginning to garner judicial attention. This Article argues that a proper resolution of the constitutional problems raised by teaching intelligent design requires both a precise understanding of intelligent design and evolutionary theory, and a sophisticated grasp of theological conceptions of the origin and development of life. After explaining these important foundational concepts and surveying the most relevant Supreme Court precedent, this Article discusses two important threshold questions that arise from the origins debate. First, is intelligent design theory inherently religious? Secondly, must science refrain from referring to supernatural causation? Answering each question in the negative, this Article then sketches the analysis necessary for determining the constitutionality of a state actor's decision to permit, require, or forbid the teaching of intelligent design in public school science classes.
Intelligent Design, evolution, creationism, establishment clause, religion clauses, neutrality norm, Lemon test, endorsement test
Abstract: Under current law, charitable organizations qualify for exemption from federal income taxation only if they do not participate to any degree in political campaigns on behalf of (or in opposition to) candidates for public office. The Internal Revenue Service has begun to examine the political activities of charitable and religious organizations (including churches) with heightened scrutiny. This Article first surveys the statutory, administrative and case law governing the political campaign activities of charities. Next, this Article identifies and critically analyzes the major rationales for prohibiting tax-exempt charitable entities from participating in electoral politics. These rationales are evaluated, for the first time in the academic literature, through the perspective of a recently advanced theory of the taxation of charitable entities and their donors. After concluding that none of the rationales necessarily justify the absolute prohibition of participation in political campaigns by charities, this Article explains why some charities should be permitted to participate in political campaign activity without adverse tax consequences. Finally, this article proposes several statutory modifications that both relax the current ban on engaging in electoral politics and guard against the private exploitation of charities through political activity.
Tax-exempt organizations, charitable organizations, political campaign, church, section 501(c)(3), political activity, political expenditures
Abstract: The United States Supreme Court recently has decided several difficult and divisive constitutional issues deeply and broadly affecting numerous charitable and educational institutions. The supposed clarity in the law effected by these decisions is undermined by an elusive doctrine of federal income tax law governing tax-exempt charitable organizations. This public policy doctrine may deprive an organization of tremendous tax benefits, notwithstanding that its activities and legal, and perhaps even when such activities are otherwise constitutionally protected. This article discusses the judicial foundation of the doctrine and its subsequent administrative development, and explains the doctrine's myriad and complex administrative, constitutional, and other problems. This article then suggests a contraction and refinement of the doctrine for adoption by the courts and partial enactment by Congress.
income tax exemption, charity, charitable organization, section 501(c)(3), public policy doctrine, Grutter, nondelegation doctrine, separation of powers, tax-exempt, Bob Jones, race-based admissions, public policy
Abstract: Taxpayers have often sought to designate by name the specific individuals ('secondary beneficiaries') whom the taxpayers desire to benefit ultimately from their contributions to charitable organizations. Under current case law and the administrative rulings of the Internal Revenue Service, a taxpayer who makes such an 'earmarked' transfer to charity is in many cases denied a charitable contribution deduction for such a transfer under section 170 of the Internal Revenue Code. In this article, Professor Buckles first discusses the deductibility of non-earmarked transfers to charitable donees under current law, and then explores and analyzes the deductibility of transfers to charity which are in some manner earmarked for the benefit of a secondary beneficiary, upon the initiative of either the taxpayer or the charitable transferee. The article then surveys existing scholarship addressing the justification of the charitable contribution deduction under income tax theory, pervasive norms of tax policy, and broader policy objectives. Similarly, existing theories supporting the exemption of charitable organizations from federal income taxation are briefly discussed. These sections form the necessary background for the final major section of the paper, in which Professor Buckles critically examines the normative question of whether, and to what extent, earmarked contributions to charity should be deductible. The article discusses both the relevance of several factors that existing authorities have cited in determining the deductibility of earmarked transfers to charity, and how a deduction for such transfers fares under several norms and other guiding principles. The article concludes with Professor Buckles' proposed framework for determining when an earmarked contribution should be deductible. In general, a taxpayer should be entitled to deduct any earmarked transfer to a charitable organization which both receives delivery of the transferred money or property and accepts the contribution in its own right (rather than as an agent or as a trustee of a private trust). Two exceptions to this proposed rule exist. First, no deduction should be allowed for any earmarked transfer pursuant to which the taxpayer or a member of her household is designated by the taxpayer as the secondary beneficiary. Secondly, a taxpayer should receive no charitable contribution deduction for any transfer to a charity operating as a commercial nonprofit, if such transfer secures market-priced goods and services for consumption by the secondary beneficiary. An exception to this exception should exist if it is established that, absent the earmarked transfer, the charitable transferee nonetheless would have provided such good or service to the secondary beneficiary without charge because of the secondary beneficiary's inability to pay for the good or service.
earmarked gift, earmarked contribution, earmarked donation, earmarked transfer, Good Samaritan, charitable contribution, charitable gift, section 170, charitable contributions deduction, charitable contribution deduction
Abstract: Most United States law schools prohibit prospective employers who discriminate against students on any of several grounds, including sexual orientation, from utilizing the schools' student recruitment programs conducted by their career services offices. Because homosexuals who disclose their sexual orientation may not serve in the United States armed forces, some law schools at times have limited the channels through which military recruiters may interview students. In response to the application of these anti-discrimination policies to military recruiters, Congress enacted the Solomon Amendment. The Solomon Amendment eliminates certain federal funding otherwise available to an institution of higher education if it denies military recruiters the same access to its students and campus that other recruiting employers receive. Although the United States Supreme Court has recently upheld the constitutionality of the Solomon Amendment, another legal issue - one that existing legal scholarship has never considered - remains outstanding. The issue is whether private law schools that have denied military recruiters full access to student recruitment programs have forfeited their federal income tax exemption under section 501(c)(3) of the Internal Revenue Code under the public policy doctrine announced in Bob Jones University v. United States. This article rigorously analyzes this provocative issue by positing a hypothetical Supreme Court case, Yale University v. Commissioner, in which four opinions written by fictional Supreme Court Justices determine the tax-exempt status of several private, free-standing law schools or their affiliated universities. This format not only facilitates an analysis of the nuances of the public policy doctrine, but also exposes and illustrates the vagaries of the doctrine. Building on Reforming the Public Policy Doctrine, 53 U. Kan. L. Rev. 397 (2005), available at http://ssrn.com/abstract=846825, this article concludes that the hypothetical case of Yale University v. Commissioner demonstrates that the public policy doctrine should be reformed.
Solomon Amendment, 'Don't Ask, Don't Tell,' FAIR I, FAIR II, Public Policy Doctrine, Bob Jones University,' 'Admissions Policy,' 'Military Recruiters,' 'Tax Exempt, Tax Exemption, 501(c)(3), sexual orientation, federal funding, Yale University
Abstract: The Internal Revenue Service is aggressively investigating churches for their alleged political endorsements of candidates in the 2008 presidential election. At issue is whether these churches have violated section 501(c)(3) of the Internal Revenue Code, which imposes a ban on electioneering by churches and other charities as a condition of maintaining federal income tax exemption. The ban has been justified as necessary to ensure the proper separation of church and state. Building on Is the Ban on Participation in Political Campaigns by Charities Essential to their Vitality and Democracy?, 42 U. Rich. L. Rev. 1057 (2008), available at http://ssrn.com/abstract=1021601, Not Even a Peep? The Regulation of Political Campaign Activity by Charities through Federal Tax Law, 75 U. Cin. L. Rev. 1071 (2007), available at http://ssrn.com/abstract=931262, and The Community Income Theory of the Charitable Contributions Deduction, 80 Ind. L. J. 947 (2005), available at http://ssrn.com/abstract=842325, this article critically analyzes the separationist rationales for the ban. Four major variants of the separationist argument are articulated and thoroughly analyzed in the context of relevant Supreme Court case law, statutory law, administrative guidance, and the norms that underlie the First Amendment. After critically reflecting upon each version of the separationist defense of the ban, as well as the underlying assumptions of each variant, this article concludes that the separation norm not only fails to support the ban, but also counsels against it. This article concludes by briefly explaining the implications of this analysis for public policy.
political campaign, political activities, charitable organizations, electioneering, churches, electoral politics, tax-exempt, tax exemption, section 501(c)(3), charitable contribution, election, separation of church and state
Abstract: The charitable contributions deduction, a longstanding yet controversial feature of the Internal Revenue Code, has been justified under subsidy theories and tax-base theories. Focusing on the latter, this Article presents and explains a new tax-base theory in support of the charitable contributions deduction - the community income theory. This theory posits that some income, designated as community income, is properly excluded from the personal tax income base because it is more naturally attributed to the community than to the individual members of the community. Adopting the presumption that the community generally should be treated as a tax-exempt entity, this Article argues that both the charity income tax exemption and the charitable contributions deduction may be defended on the basis that they reflect the theoretically correct taxation of community income.
income tax exemption, charitable organization, charity, Section 501(c)(3), charitable contributions deduction, charitable contribution deduction, income tax theory, community income
Abstract: Religious and other charitable organizations are described in section 501(c)(3) of the Internal Revenue Code only if they do not participate or intervene in any political campaign on behalf of (or in opposition to) a candidate for public office. A charity that engages in such political campaign activity forfeits its federal income tax exemption and its ability to receive donations that are deductible by donors in computing their federal taxable income. The two-fold penalty effectively prohibits many charities from supporting or opposing political candidates. In a recent article, Professor Donald Tobin argues in favor of this effective ban by asserting that removing it would threaten the American democratic system and the vitality of charitable organizations. This Paper responds to Professor Tobin's thesis. This Article explains why his arguments do not establish that the ban on political campaign participation by charitable organizations is essential (1) to protect the vitality of the charitable sector in general, and churches in particular, or (2) to maintain a properly functioning democracy in the United States. However, this Article also explains why unfettered intervention in political campaigns by charities would pose some problems. This Article concludes that some electioneering by charities is proper, and that alternatives to the ban would better address the most compelling concerns raised by Professor Tobin.
political campaigns, political activities, charitable organizations, electioneering, churches, electoral politics, tax-exempt, tax exemption, section 501(c)(3), charitable contribution, election
Abstract: Following the events of September 11, charitable donees received an unprecedented level of donations made in response to appeals for funds to aid the victims of the terrorist attacks against the United States. Some charities received more money than they believed necessary for accomplishing the charitable purpose for which gifts were restricted. Although the charitable response to September 11 is an extreme case, the receipt by charities of surplus funds arising from public solicitations for gifts for a designated charitable purpose is not uncommon. The legal implications of such surplus funds are many. The doctrine of cy pres applies awkwardly to surplus gifts raised through mass solicitations, and the doctrine is further complicated by federal income tax laws governing charitable gifts and charitable organizations. Existing law leaves many questions unanswered. Contemporary proposals to reform the doctrine of cy pres are inadequate. This Article advances an original solution to the problem of publicly solicited surplus funds restricted for a designated purpose. The author proposes an amendment to federal statutory law which would promote the disclosure of important information by charitable donees to donors and facilitate extra-judicial resolution of the problem of disposing of surplus, restricted gifts to charity.
charitable contribution, charitable gift, section 170, charitable contributions deduction, charitable contribution deduction, 9/11, surplus funds, surplus donations, surplus contributions, oversubscribed, restricted gift, restricted contribution, restricted donation, donor restriction, Twin Towers
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