Legal Defense Funds as Political Organizations

17 Pages Posted: 21 Apr 2011  

Ellen P. Aprill

Loyola Law School Los Angeles

Date Written: April 19, 2011

Abstract

Senator John Ensign registered his legal defense fund as a section 527 organization. He appears to be unique in this regard. This report lays out the advantages of, and difficulties with, registering a congressional legal defense fund as a section 527 organization. It begins by offering as background a summary of the congressional and executive branch rules that apply to these funds, the Federal Election Commission’s position on them, and a brief description of the best-known legal defense funds - the two established by President Clinton.

The report then considers whether contributions to funds that do not register as section 527 organizations are income to the official and, if so, whether there are matching deductions. The report examines whether contributors to the legal defense funds could have gift tax liability. It concludes the tax section by examining whether the trust would be considered a grantor trust. It concludes that both the politicians for which the fund was established and contributors to it could face tax liability under current law.

The report then explains how an amendment to section 527 in 1988 permits the use of a section 527 organization for such a fund and describes how that use can avoid both income and gift tax liability that a legal defense fund might otherwise generate. The report also discusses how a legal defense fund becomes a section 527 organization and describes two funds established by state officeholders that operated as section 527 organizations. Finally, the report recommends that the House and Senate rules regarding legal expense funds be amended to explicitly recognize section 527 legal defense funds.

Suggested Citation

Aprill, Ellen P., Legal Defense Funds as Political Organizations (April 19, 2011). Tax Notes, Vol. 131, p. 277, 2011; Loyola-LA Legal Studies Paper No. 2011-15. Available at SSRN: https://ssrn.com/abstract=1815348

Ellen P. Aprill (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1157 (Phone)
213-380-3769 (Fax)

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