A Deduction Properly Extinguished? The Live-Burn Donation: A Proposed Sequence of Analysis and Policy Evaluation

38 Pages Posted: 12 Jun 2014

See all articles by Eric Smith

Eric Smith

Weber State University (WSU)

Date Written: June 10, 2014


This article updates the literature analyzing the charitable deduction associated with live-burn donations. This deduction has been the subject of multiple recent Tax and appellate Court rulings, all of which have disallowed the deduction. The article examines and reconciles the resulting live-burn donation line of cases. It agrees with prior scholarship finding that the courts’ treatment of the deduction has rendered it ineffective as a tax planning tool, but proposes a theoretical sequence of analysis to gauge the state of the law and determine whether any avenue remains which leads to deduction. Scholarly response to the disallowance of the live-burn donation has been generally negative. In contrast to these positions in the literature, this article finds that denial of a deduction for live-burn donations is consistent with and reconcilable on grounds of traditional tax policy notions of equity and fairness. Despite the live-burn donation’s initial acceptance on the basis of public benefit, the doctrine is fundamentally vulnerable on multiple fronts: it pushes the bounds of vertical equity, it disproportionately favors the wealthy, it undermines traditional concepts of charitable intent, and it provides an excessive private benefit in exchange for a public benefit which is too difficult to measure or quantify.

Keywords: charitable deduction, live burn donation, quid pro quo, partial interest

Suggested Citation

Smith, Eric Steven, A Deduction Properly Extinguished? The Live-Burn Donation: A Proposed Sequence of Analysis and Policy Evaluation (June 10, 2014). 33 Va. Tax. Rev. 459, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2448322

Eric Steven Smith (Contact Author)

Weber State University (WSU) ( email )

1337 Edvalson Dept 3803
Ogden, UT 84408
United States
(801) 626-6041 (Phone)

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