Church Tax Developments in 1997

Church Law and Tax 1998-01-01 Church Tax Developments in 1997 Richard R. Hammar, J.D., LL.M.,

Church Law and Tax 1998-01-01

Church Tax Developments in 1997

1. Increase in wages subject to FICA tax. The FICA tax rate (7.65% for both employers and employees, or a combined tax of 15.3%) did not change in 1997. However, the amount of earnings subject to tax increased. The 7.65% tax rate is comprised of two components: (1) a Medicare hospital insurance (HI) tax of 1.45%, and (2) an “old—age, survivor and disability” (OASDI) tax of 6.2%. There is no maximum amount of wages subject to the Medicare hospital insurance (the 1.45% “HI” tax rate). The tax is imposed on all wages regardless of amount. For 1997, the maximum wages subject to the “old—age, survivor and disability” (OASDI) portion of self—employment taxes (the 6.2% amount) increases to $65,400-up from $62,700 in 1996. Stated differently, employees who receive wages in excess of $65,400 in 1997 will pay the full 7.65% tax rate for wages up to $65,400, and the “HI” tax rate of 1.45% on all earnings above $65,400. Employers pay an identical amount.

2. Intent to make a charitable contribution. For many years, the IRS has ruled that persons who receive goods or services in exchange for a payment to a charity are eligible for a charitable contribution deduction only with respect to the amount by which their payment that exceeds the fair rental value of the goods or services they received. Regulations issued by the IRS in 1997 add an additional condition-donors may not claim a charitable contribution in such a case unless they intended to make a payment in excess of the fair market value of the goods or services. How will church treasurers know when donors intend to make a payment in excess of goods or services received in exchange? The final regulations aren’t of much help here. They simply state that “the facts and circumstances” of each case must be considered. One rule of thumb may help-the greater the amount by which a payment exceeds the market value of goods or services received in exchange, the more likely the donor intended to make a charitable contribution.

3. Refusal of benefits. What if a member purchases a $100 ticket to a church’s missions banquet but has no intention of attending the banquet? Is the member entitled to a charitable contribution deduction of $100, or $100 less the value of the meal? In other words, must a charitable contribution be reduced by the amount of goods or services that a donor refuses to accept? The IRS addressed this issue in regulations issued in 1997. The regulations specify that “a taxpayer who has properly rejected a benefit offered by a charitable organization may claim a deduction in the full amount of the payment to the charitable organization.” How does a donor reject a benefit? The IRS suggested that charities create a form containing a “check—off box” that donors can check at the time they make a contribution if they want to refuse a benefit.

4. Timely receipts. The new rules for substantiating charitable contributions that took effect in 1994 deny a deduction for individual contributions of $250 or more unless the donor receives a receipt from the charity that complies with several requirements. One of those requirements is that the donor must receive a “contemporaneous” or timely receipt from the charity. This means that the receipt acknowledging the contribution must be received by the donor on or before the earlier of the following two dates: (1) the date the donor files a tax return claiming a deduction for the contribution, or (2) the due date (including extensions) for filing the return. Will the IRS actually deny a charitable contribution deduction to a donor simply because she did not receive a timely receipt from the charity? The official comments to IRS regulations issued in 1997 leave no doubt that a deduction may be denied in such cases. The regulations state that a donor who files a return before receiving a receipt from a charity cannot “correct” this situation by filing an amended tax return since “a written acknowledgment obtained after a taxpayer files the original return for the year of the contribution is not contemporaneous within the meaning of the statute.”

5. Multiple contributions. Assume that Don makes ten separate contributions to his church during 1997 of $250 or more. Must the church issue a written receipt that lists each of these contributions separately, or can the ten contributions be lumped together as one amount? The official comments to regulations issued by the IRS in 1997 contain the following statement: “[F]or multiple contributions of $250 or more to one charity, one [receipt] that reflects the total amount of the taxpayer’s contributions to the charity for the year is sufficient.” In other words, the church is free to lump all of Don’s contributions together as one amount on its receipt.

6. Out—of—pocket expenses. Let’s say that Greg, a member of First Church, participates in a short—term missions project and in the process incurs $300 of unreimbursed out—of—pocket travel expenses. The IRS has long acknowledged that such expenses are deductible as a charitable contribution. But what about the new rules for substantiating charitable contributions of $250 or more? Do they apply to this kind of contribution? Is the church responsible for keeping track of Greg’s travel expenses in order to determine if they are $250 or more? Must it issue a receipt that states the amount of travel expenses incurred? Regulations issued by the IRS in 1997 specify that when a taxpayer incurs unreimbursed expenses in the course of performing services for a charitable organization, the expenses may be substantiated by an “abbreviated written acknowledgment” provided by the charity containing the following information: (1) a description of the services provided by the donor; (2) whether or not the charity provided any goods or services in return; and (3) if the charity provided any goods or services, a description and good faith estimate of the fair market value of those goods or services. In addition, the abbreviated written acknowledgment must be received by the taxpayer before the earlier of the date he or she files a tax return claiming the contribution deduction, or the due date (including extensions) for the tax return for that year. In response to several comments, the final regulations drop the requirement that the abbreviated acknowledgment include the dates on which the volunteer services were performed.

7. Sale of charity—owned property not subject to the unrelated business income tax. So ruled the IRS. A school was given land by a donor with the understanding that it would use the land for school purposes and not sell it unless absolutely necessary. The school attempted to lease the property for many years, but the school’s trustees eventually decided that the land had to be sold. The school asked the IRS if the sales proceeds would be subject to the unrelated business income tax (UBIT). The IRS said no. UBIT is imposed on earnings generated by exempt organizations from an “unrelated trade or business” that is regularly carried on. There are a number of exceptions. For example, the tax code specifically exempts from this tax “all gains from the sale of property” other than “property held primarily for sale to customers in the ordinary course of the trade or business.” The IRS ruled that taxable income would not result “unless a sales purpose is dominant.” The IRS concluded that this standard had not been met in this case because of the following factors: (1) the land was held for “a significant period of time” before it was sold (contrary to the “short turn around period experienced by a typical buyer and seller of property”); (2) the school did not “regularly sell real estate”; (3) the school’s “management activities with respect to the property have been minimal,” and have consisted of collecting rents and providing routine maintenance and repairs; and (4) the school had not been “involved in any way with improving the land or providing services to tenants”. The IRS concluded that “these facts distinguish [this sale] from the sale of property held primarily for sale to customers in the ordinary course of business.” Therefore “income from the sale of this property is excluded from the computation of unrelated business taxable income.” IRS Letter Ruling 9651014.

8. IRS addresses a church’s sale of “coupon books.” In order to raise funds for its school, a church sold “scrip coupon books” containing coupons that are redeemable at various businesses. The church purchases the scrip from the scrip vendor and distributes it to parents who sell it and return the proceeds to the school. Do revenues earned from this program represent taxable “unrelated business income”? No, ruled the IRS. It noted that the sale of scrip by a church solely to raise funds for an exempt purpose is an unrelated “trade or business” since it is an activity “carried on for the production of income from the sale of goods.” Such sales “do not themselves have a substantial causal relationship to the exempt purposes of the school.” However, the IRS noted that the tax code exempts from the definition of an unrelated trade or business “any trade or business in which substantially all the work in carrying on such trade or business is performed for the organization without compensation.” Such was the case here, since the scrip program was administered by a volunteer parent who received no compensation for her services, and she was assisted by other volunteer parents who also served without compensation. The IRS noted that a compensated school employee wrote the checks to purchase the coupon books and another employee deposited the proceeds of the scrip sales. However, the IRS concluded that the involvement of these two employees did not affect the exclusion since “the amount of time spent by these employees on the scrip program is insubstantial.” Letter Ruling 9704012.

9. Fund—raising concerts may trigger tax on unrelated business income. So said the IRS in a recent ruling. Tax—exempt organizations, including churches, must pay this tax on net earnings from a business activity that is regularly carried on-if the activity is not substantially related to the organization’s exempt purposes. The fact that income from the activity is devoted to an exempt use does not matter. It is the nature of the activity that counts. A charity conducted two concerts each year to raise funds. The concerts in no way furthered the charity’s exempt purposes, other than the raising of revenue. The IRS acknowledged that “intermittent” activities are not “regularly carried on,” and therefore cannot be a taxable unrelated trade or business. However, it insisted that the “preparatory time for an event must be taken into account in determining whether an activity is regularly carried on.” Since the charity in this case spent up to six months preparing for each concert, the concerts were “regularly carried on.” IRS Letter Ruling 9712001.

10. Authority of bankruptcy trustees to recover charitable contributions. Some bankruptcy trustees have asked churches to return contributions made by a bankrupt donor. Federal law gives bankruptcy trustees the power to “set aside” transfers by bankrupt debtors for less than fair value during the twelve months preceding the filing of a bankruptcy petition. A federal appeals court ruled in 1996 that the first amendment guaranty of religious freedom did not prevent bankruptcy trustees from recovering contributions made by bankrupt donors to a church. However, the court ruled that allowing trustees to recover contributions would violate the Religious Freedom Restoration Act with respect to those donors for whom giving to their church was an important religious practice. In re Young, 82 F.3d 1407 (8th Cir. 1996). In 1997, the United States Supreme Court struck down the Religious Freedom Restoration Act on the ground that Congress exceeded its authority in enacting the law. This decision has the effect of repealing the Young case. Contributions made by church members to their church within a year before filing a bankruptcy petition are now subject to recovery by a bankruptcy court. In summary, there is little chance that a church or donor could successfully challenge a bankruptcy trustee’s efforts to recover contributions made by the donor within one year of filing a bankruptcy petition.

11. Rental income not taxable, says IRS. A charity rented a portion of its premises to another charity with similar purposes. The IRS ruled that the rental income was not subject to the “unrelated business income tax” (UBIT), even though the property was “debt—financed,” since the rental arrangement was “substantially related” to the charity’s exempt purposes. The IRS noted that rental income received by a charity from “debt—financed” property generally is subject to UBIT. However, an exception applies to rental agreements that are substantially related to the charity’s exempt purposes. The IRS noted that “an organization’s leasing of its property to others may be substantially related to the performance of its exempt function.” This test was met, the IRS concluded, because the rental agreement “will contribute importantly to the accomplishment of [the charity’s] purposes” and will help further its “charitable goals.” The IRS noted that a rental agreement will be “substantially related” to a charity’s exempt purposes if it meets any one or more of the following conditions: (1) it has a “causal relationship to the achievement of exempt purposes (other than through the production of income)”; (2) it contributes importantly to the accomplishment of those purposes; (3) the entire property is devoted to the charity’s exempt purposes at least 85 percent of the time, or (4) at least 85 percent of the property (in terms of physical area) is used for the charity’s exempt purposes. IRS Letter Ruling 9726005.

12. Delay in penalty for failure to deposit payroll taxes electronically. In 1993 Congress enacted legislation requiring the IRS to develop a system for the electronic filing of payroll taxes. Congress wanted a simple, “paperless” way for employers to deposit their payroll taxes. In response the IRS came up with the Electronic Federal Tax Payment System (or EFTPS). The new electronic system is phased in over a period of years by increasing the percentage of total taxes subject to the new EFTPS system each year. For 1997, the target percentage was to be achieved by requiring all employers that deposited more than $50,000 in payroll taxes in 1995 to begin using EFTPS by January 1, 1997. Congress later postponed this deadline until July 1, 1997, and the IRS announced in 1997 that it would not impose penalties for noncompliance through the end of 1997-for employers that make timely deposits using paper forms while converting over to the EFTPS system. Congress enacted legislation in 1997 providing that no penalties will be assessed for failure to use the EFTPS system to deposit payroll taxes prior to July 1, 1998.

13. Corporate sponsorship payments. Many churches produce pictorial directories of members, and sponsor concerts or other events. In some cases, churches seek financing for these projects from local businesses. For a fee, a business can have its name appear as a sponsor in the pictorial directory, or in a printed program distributed at the concert or other event. Are these fees subject to the federal unrelated business income tax (UBIT)? Congress enacted legislation in 1997 that addresses this issue directly. Here are the new rules, which take effect in 1998:

“Qualified sponsorship payments” received by a church or other charity will not be subject to UBIT. A qualified sponsorship payment is defined as a payment made by a business to a charity in exchange for the use of the business’s name or logo by the charity.

This exception will not apply to any payment which entitles a company to advertise its name or logo “in regularly scheduled and printed material” published by the charity-unless “related to and primarily distributed in connection with a specific event conducted by” the charity.

14. Eliminate gift tax filing requirements for gifts to charity. Persons who donate more than $10,000 to any one person or organization in the same year are required to file a federal gift tax return with the IRS. Gifts to churches and other charities are exempted from this requirement. Congress enacted legislation in 1997 clarifying that this exemption applies only to gifts of a donor’s entire interest in property to the church or charity. It does not apply to a gift of a partial interest in property. This provision applies to gifts made after August 5, 1997.

15. Church plan exception to group health coverage. Legislation enacted in 1996 prohibits group health plans from excluding an employee on account of his or her health or medical condition. Congress enacted legislation in 1997 providing that a church plan does not violate this nondiscrimination requirement merely because the plan requires evidence of good health in order for an individual to enroll in the plan. However, this exception only applies with respect to individuals (1) who are employees of an employer with 10 or fewer employees, or self—employed, or (2) who enroll after the first 90 days of eligibility under the plan. Further, this exception applies to a church for a particular year only if the health plan required evidence of good health as of July 15, 1997, and at all times thereafter.

16. Religious schools exempt from federal unemployment tax. Since 1970, all work performed for nonprofit organizations is subject to federal unemployment tax and must be covered by state unemployment law, unless specifically exempted by law. Exemptions have included work performed for a church (or convention or association of churches), or an organization “which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches.” Congress enacted legislation in 1997 that expands this list of exceptions to include work performed in an elementary or secondary school that is operated primarily for religious purposes, even if it is not operated, supervised, controlled, or principally supported by a church or a convention or association of churches.

17. New W—4s. The comprehensive Taxpayer Relief Act, enacted by Congress in 1997, does what its title suggests-it provides significant tax relief to many taxpayers. The biggest winners are lower and middle income taxpayers. As a result, many church staff members will be paying less taxes in 1998. Church treasurers should encourage all staff members to consider filing new and updated W—4 forms for 1998-to reduce their income tax withholdings.

18. The IRS addressed “designated contributions” to charity in an important ruling. Every church has received contributions designating a specific project or use. It is important for church treasurers to understand the tax implications of such gifts. Are they tax—deductible? Should the church issue the donor a receipt acknowledging the contribution? Can the donor claim a tax deduction on his or her tax return? A 1997 IRS ruling addressed this important topic. While the case involved a university, it is directly relevant to churches. The IRS ruled that contributions to a university for the renovation of designated fraternity houses were tax—deductible since (1) the university assured donors that it would “attempt” to honor their designations; and (2) the university made it clear to donors that it accepted their designated gifts with the understanding that the designations would not restrict or limit the university’s full control over the contributions, and that the university could use the designated contributions for any purpose. The IRS cautioned that for a designated gift to be a tax—deductible charitable contribution, it

must be in reality a gift to the college and not a gift to the fraternity by using the college as a conduit. The college must have the attributes of ownership in respect of the donated property, and its rights as an owner must not, as a condition of the gift, be limited by conditions or restrictions which in effect make a private group the beneficiary of the donated property. In addition … the college should, as an owner, be free to use the property acquired with the gift as its future policy suggests or requires …. [The] university will accept gifts designated for the benefit of a particular fraternity only with the understanding that such designation will not restrict or limit university’s full ownership rights in either the donated property or property acquired by use of the donated property. Private Letter Ruling 9733015.

19. Increased IRS scrutiny of 403(b) plans. A top IRS official announced in 1997 that the IRS will be conducting more exams of 403(b) plans to ensure compliance with federal law. The main target-contributions that exceed the complex limits imposed by law. The remarks were made by Robert Architect, an employee of the IRS Employee Plans Division, at a recent American Bar Association conference in Washington, DC.

20. Application of pre—ERISA nondiscrimination rules to church plans. Church retirement plans are exempt from various requirements imposed by the Employee Retirement Income Security Act of 1974 (“ERISA”) upon pension plans. For example, church plans are not subject to ERISA’s vesting, coverage, and funding requirements. However, according to a comment in the conference committee’s official report to the Small Business Job Protection Act of 1996, “in some cases” church plans will be “subject to provisions in effect before the enactment of ERISA” and that under these rules a church plan “cannot discriminate in favor of officers … [or] persons whose principal duties consist in supervising the work of other employees, or highly compensated employees.” The Act clarifies that church plans subject to these pre—ERISA nondiscrimination rules may not discriminate in favor of “highly compensated employees” as defined under the new and simplified definition of that term contained in the Act, and this single nondiscrimination rule replaces the pre—ERISA rule banning discrimination in favor of officers or persons whose principal duties consist in supervising the work of other employees (unless they also satisfy the new definition of a highly compensated employee). As noted in another paragraph in this summary, the new definition of a highly compensated employee includes an employee who had compensation for the previous year in excess of $80,000, and, if an employer elects, was in the top 20 percent of employees by compensation. This provision took effect in 1997.

21. Churches permitted to establish 401(k) retirement plans. A 401(k) retirement plan (also known as a “qualified cash or deferred arrangement”) is one of the most popular forms of retirement plan in use today. They have not been available to churches and other tax—exempt organizations since 1986, but this has not been a problem since these organizations can establish “tax—sheltered annuities” which contain many of the same features including generous employee contributions through tax—deferred “salary reduction agreements,” and employer contributions. Prior to 1996, tax—sheltered annuities have been more attractive than 401(k) plans, since an employee could contribute a slightly larger amount to a tax—sheltered annuity than to a 401(k) plan. The two kinds of plans are nearly identical today in terms of tax advantages, and so it is doubtful that many churches will create 401(k) plans as an alternative to tax—sheltered annuities. This provision took effect in 1997.

22. The IRS expresses concern over widespread failure by donors to properly substantiate their contributions of noncash property to charity. The IRS continues to express concern over the widespread lack of compliance with the substantiation requirements that apply to charitable contributions of noncash property valued by the donor at $500 or more (note that these rules are in addition to the new substantiation rules that took effect on January 1, 1994). Any donor who contributes noncash property (i.e., homes, land, vehicles, equipment, jewelry) to a church or other charity, and who claims a deduction of $500 or more, must complete IRS Form 8283 and enclose it with the Form 1040 on which the deduction is claimed. If property valued at more than $5,000 is donated, then additional requirements apply. The donor must obtain a qualified appraisal and enclose an appraisal summary with the Form 1040 on which the deduction is claimed.

23. Corporate sponsorship payments. Congress enacted legislation in 1997 specifying that “qualified sponsorship payments” received by a tax—exempt organization will not be subject to the unrelated business income tax (UBIT). A qualified sponsorship payment is defined as a payment made by a business to a charity in exchange for the use of the business’s name or logo by the charity. The new law cautions that this exception will not apply to: (1) Advertising of a company’s products or services “including messages containing qualitative or comparative language, price information, or other indications of savings or value, an endorsement, or an inducement to purchase, sell, or use such products or services.” (2) Any payment which entitles a company to advertise its name or logo “in regularly scheduled and printed material” published by the charity-unless “related to and primarily distributed in connection with a specific event conducted by” the charity. (3) Any payment made in connection with any qualified convention or trade show activity. This provision applies to payments made or received on or after January 1, 1998.

24. A federal court in Rhode Island ruled that the exemption of churches from unemployment tax did not violate the first amendment’s nonestablishment of religion clause. The Salvation Army dismissed an employee for budgetary reasons. The employee applied for unemployment benefits, and was informed that she was not eligible since her former employer was a religious organization that was exempt from unemployment tax. The employee filed a lawsuit claiming that the exemption of religious organizations from the unemployment law violated the first amendment. A federal court disagreed in an important decision that reaffirms the historic exemption of churches from unemployment taxes. Rojas v. Fitch, 928 F. Supp. 155 (D.R.I. 1996).

25. The IRS ruled that income generated by a charity from various “vocational training” programs was not subject to the unrelated business income tax (UBIT). A charity operates a residential program for troubled boys ages 12 through 18. Children are referred to the charity by government agencies and school districts. The charity provides both academic and limited vocational training, both of which it considers essential to its goals of developing improved social skills, more meaningful interpersonal relationships, and the development of self control, honesty, and self—esteem. Staff members provide individual, group, and vocational therapy for the residents. The charity is located on a farm which serves as a training ground for residents. It also provides residents with opportunities to learn the basics of various trades and crafts, including automotive and heavy equipment repair, printing, and upholstery. Vocational training is secondary to the primary goal of social reintegration into the community. Most residents have never been employed. In order to give residents retail sales experience and other work—related experiences, the organization proposes to erect a shed alongside a highway which crosses its property, and to conduct in that facility the following three activities using residents who would be paid minimal wages and who voluntarily agree to participate: (1) sales of produce from farming activities; (2) sales of furniture built by students; and (3) operation of a golf driving range. Each activity will charge prices competitive with for—profit businesses in the area, although anticipated profits will be minimal. The primary goal of these sales operations is to give residents the experience of operating a business, to learn general business principles and judgment, and to enhance their social skills in a public environment. The charity will employ no special personnel for this program.

The charity asked the IRS if the earnings from these activities would be subject to the unrelated business income tax (UBIT). The IRS said no. It noted that an “unrelated trade or business” is any trade or business of an exempt organization that is not substantially related (aside from the need of such organization for income) to the organization’s exempt functions. The IRS noted that the income tax regulations specify that a trade or business is related to exempt purposes when the conduct of the business activity has a direct and substantial relationship to the achievement of an exempt purpose, and contributes importantly to the accomplishment of those purposes. The IRS concluded that the charity’s proposed activities “are being undertaken to further the goals of the existing programs for residents, and not for the production of income. The proposed activities are a natural extension of existing programs for residents. The scale of the operations is no larger than is necessary for the organization to accomplish its charitable purposes. This is evidenced by the fact that the individuals providing labor for these facilities are residents who are employed as part of your rehabilitation program, and your staff. Supervision will be provided by members of your staff who will not receive additional pay for performing this duty.” Therefore, income generated from the sale of products is not subject to UBIT. IRS Letter Ruling 9718034.

26. Impact of tax simplification. A number of sweeping proposals for tax reform have been proposed over the past few years. Some “flat tax” proposals would eliminate most deductions, including a deduction for charitable contributions, in exchange for a flat income tax rate. Would donations decline because of the loss of a contribution deduction? Two factors suggest that they would not. First-71% of all taxpayers can’t deduct their contributions under present law, because they cannot itemize deductions on Schedule A. A “flat tax” that eliminated charitable contribution deductions would only affect the remaining 29% of taxpayers that currently can deduct their contributions. Second-when the partial deduction of charitable contributions by nonitemizers expired in 1986, there was no decrease in charitable giving.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

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