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  3. Charitable Deduction

Charitable Deduction

The charitable deduction is tax provision which allows individuals to reduce their taxable income by the total amount of charitable contributions they made in that tax year (with some limitations, depending of the type of gift—i.e. cash, stocks, property—or the type of organization receiving the gift). As a result, taxpayers who claim the charitable deduction are generally not subject to federal income taxes on money they give to charity.

Research shows that some proposed changes to the tax code that are being considered as part of a tax reform bill would decrease charitable giving by $13.1 billion. The study confirms and gives shape to the notion of ‘unintended negative consequences’ of tax reform that Council staff has been discussing with Members of Congress.

The good news is that enacting a universal charitable deduction (or, making the charitable deduction available to all taxpayers regardless of whether they itemize their taxes or not) would not only mitigate such a decrease in charitable giving, but would actually encourage an increase in giving of $4.8 billion.

The Council strongly supports enacting a universal charitable deduction as a part of tax reform to mitigate unintended negative consequences on the scope and value of this provision.

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A Note on Lobbying by Private Foundations on this Issue

The Council’s legal team has determined that private foundations may engage in lobbying communications with Members of Congress and their staff on the universal charitable deduction.

While private foundations are generally prohibited from conducting direct or grassroots lobbying activity, the “self-defense” exception to that rule, found in the Treasury Regulations at §53.4945-2(d)(3), allows a private foundation to communicate with a legislative body regarding legislation that affects the “existence of the private foundation, its powers and duties, its tax-exempt status or the deductibility of contributions to such foundation” (emphasis added). Legislation that would change the structure of the charitable deduction, making it available to all taxpayers, would likely affect the deductibility of contributions to private foundations as well as other charitable organizations, and would therefore fall under this exception.

If provisions affecting the charitable deduction (such as enacting a universal deduction) are included as part of a more comprehensive tax reform bill, the conservative approach for private foundations would be to limit direct lobbying communications to those portions of the bill which address the charitable deduction and any other provisions that affect the existence of the private foundation, its tax-exempt status or the powers or duties of the private foundation. However, understanding the practical problems this may present, the Council has previously taken the position that private foundations may advocate for the passage of a bill that includes one or more provisions that would qualify for the self-defense exception, even if other portions of the bill do not. For example, when simplification of the private foundation excise tax is included in a bill with other provisions that may not directly affect the existence, powers or duties of a private foundation, it is the Council’s position that the private foundation may still contact legislators urging support for the bill. 

It is important to note that the self-defense exception is not available for activities that would constitute grassroots lobbying—such as encouraging grantees or others to contact their legislators.

Finally, the Council respects its members’ own determinations regarding legal issues, and individual policies or practices related to lobbying activity. We encourage members to consult with their own legal counsel regarding any questions.

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