Tax Policies & Regulations
CARROTS AND STICKS:
TAX POLICIES AND REGULATIONS TO SUPPORT TAX-EXEMPT ARTS ORGANIZATIONS
Guest contributor Derrick Everett discusses policies that, if enacted, may provide much needed support for artists and non-profit arts organizations.
General Tax Policies and Regulations
As the calendar year comes to a close, we now approach that great annual American pastime tradition uniting us all across geography, religion and culture: Tax season.
This post is intended not just for artists, staff members and board members – non-lawyers – who are either contemplating starting a tax-exempt arts, or who are already working with or within such an organization. This post is for all of us who value the arts in our lives and our communities. The purpose of this post is to provide a basic understanding of federal tax policies not yet in place that, if implemented, would provide much needed support for artists and tax-exempt arts organizations.
The U.S. currently has a sprawling, some would say unwieldy, tax code. Efforts have been underway at various level of intensity for comprehensive tax reform for decades. Such reform may provide tremendous benefits for the country as well as for the tax-exempt sectors. But, regardless of other reforms, there are certain policies and regulations that unless addressed in a way that is mindful of the effects on tax-exempt organizations, would devastate the sector.
Further, advocates for tax-exempt organizations emphasize that any tax reforms must “preserve incentives for charitable giving…, and reject attempts to create a hierarchy of deductions to nonprofits that discriminates against arts and culture by reducing tax deductibility of charitable gifts.”[i]
Specific general federal tax policies and regulations that are ripe for reform to the benefit of tax-exempt arts organizations include:
General Tax Regulations
- Estate and Gift taxes
- IRA (Individual Retirement Account) Charitable Rollover
- Itemized Charitable Deductions
Estate and Gift Taxes
Brief Overview of the Law
As defined by the IRS, estate taxes are those that may “apply to [a person’s] taxable estate at [said person’s] death. [The property owner’s] taxable estate is [the] gross estate less allowable deductions.”[ii] Gross estate refers to “the value of all property in which [the deceased person] had an interest at the time of death,” and may include “certain property you transferred within 3 years before [the person’s] death.”[iii]
Generally, a “gift” (within the scope of considering gift taxes) is property (including money) transferred from one person to another without expectation of compensation or anything of value in return.[iv] As of the 2010 tax filing deadline, gifts and transfers made to charities are exempt from such taxation, so long as the entire interest in the property was transferred to the charity.[v] Gift and generation-skipping taxes are imposed on property transferred while a person is still alive (or, in the case of Generation-skipping, that otherwise avoid taxation by estate and gift tax laws).[vi]
Under the Economic Growth and Tax Relief Reconciliation Act of 2001, the Estate Tax, Gift Tax and Generation-Skipping Transfer Tax were repealed, effective January 1, 2010.[vii] Based on a sunset provision included in the Act (and absent Congressional intervention to amend the Act), the estate, gift and generation-skipping transfer taxes would return in 2011 at levels present before the Act was made law, with a $1 million dollar individual exemption ($2 million for couples) and a 55% rate of taxation.[viii]
However, as a result of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, 2011 levels of estate, gift and generation-skipping transfer taxes were granted a $5 million dollar exemption and were to be taxed at a maximum rate of 35%.[ix] And much like the previous law, this law too had a sunset provision that repealed the taxes completely absent Congressional intervention. The 2010 Act designates that the taxes will be repealed at the start of 2013.
Why This Matters to You
Regulations and policies related to estate, gift and generation-skipping transfer taxes potentially have a great impact on all tax-exempt organizations, including arts-based tax-exempt nonprofits. Widely considered a major incentive for charitable giving is the tax benefit bestowed upon a person who gives to a tax-exempt organization. When a taxpayer itemizes charitable contributions each dollar donated to a tax-exempt organization (including donations provided from a deceased person’s estate) is credited against the donating party’s owed taxes. The taxpayer is incentivized to give to a tax-exempt organization, because the dollar spent (e.g. $1 dollar donated to a tax-exempt entity) reduces the total taxable income on the front end, and would effectively “cost” the taxpayer more to donate after taxes.[x]
Moreover, according to a 2004 Congressional Budget Office publication entitled The Estate Tax and Charitable Giving, “increasing the amount exempted from the estate tax of $675,000 to either $2 million or $3.5 million would reduce charitable giving by less than 3%.”[xi] Though the CBO has not yet published an updated figure of the projected effects of the 2010 Act on charitable giving, it stands reason to safely presume that the impact will be much more substantial than previously predicted.
The estate, gift and generation-skipping transfer tax remain a strong incentive for charitable giving. Tax-exempt arts organizations should oppose efforts to eliminate or substantially lower the estate, gift and generation-skipping transfer taxes. Significant reductions in the rate and increases in the allowed exemption value will likely have a direct, adverse, and disruptive effect on charitable giving. As noted in a 2004 Congressional Budget Office report, elimination of the estate tax “would result in an estimated 22% decline in charitable bequests.[xii] In the event the estate tax is repealed, the Brookings Institute valued the loss of charitable giving to be $10 billion – each year.[xiii]
IRA Charitable Rollover
Brief Overview of the Law
An IRA (or individual retirement arrangement) is a savings plan that allows individuals to set aside money for retirement while providing beneficial tax treatment for this money.[xiv] Such benefits may include the ability to deduct (either partially or fully) contributions made to the IRA and the exclusion from taxation all money held in the IRA (including earnings and gains) until the money is distributed, if at all.[xv]
IRAs have changed dramatically since their introduction in 1974. IRAs were originally introduced for the purpose of benefiting workers without employee-based retirement plans with the 1974 enactment of the Employee Retirement Income Security Act.[xvi] In 1981, IRAs were made available for all taxpayers under 70.5 years of age, regardless of retirement plan coverage.[xvii] Since this broadening of access, Congress has limited who may participate in IRAs and has introduced additional IRA variations (e.g. Roth IRA, Simple IRA) to what is now known as the Traditional IRA.[xviii]
Why This Matters to You
A key change to IRA since 1974 occurred in 2006. With the Pension Protection Act of 2006, Congress included a provision known for Qualified Charitable Distributions that allowed “individuals aged 70½ and older to exclude from gross income distributions from Individual Retirement Accounts (IRAs) if they are made to a qualified charity.”[xix] Individuals with IRA accounts who are over 70.5 years of age are required to make annual minimum distributions from their accounts (or else face a 50% excise tax on the amount not distributed).[xx] But, as noted earlier, the IRS generally taxes the IRA accountholders money when with distribution.
With the Qualified Charitable Distribution provision, the IRS permits individuals of 70.5 years or older to donate up to $100 thousand directly from their IRAs to public charities (but not to supporting organizations), and, thus, satisfy the annual distribution requirement, without having to count the distributions as part of their taxable income.[xxi] Independent Sector notes that American taxpayers have contributed millions of dollars in donations since the Qualified Charitable Distributions provision was enacted in 2006.
Senator Charles Schumer and nine co-sponsors have introduced the “Public Good IRA Rollover Act of 2011.”[xxiv] This proposed law would extend until beyond 2011the currently enacted IRA rollover provisions that were implemented with the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010. The Public Good IRA Rollover Act (S. 557) would “permit IRA rollovers to all charitable vehicles, including donor-advised funds, supporting organizations and private foundations; lift the $100,000 cap on distributions; and allow donors to make planned gifts beginning at age 59 ½.”[xxv]
Ideally, the Qualified Charitable Distribution provision would be made permanent. In the interim, support for legislation similar to Senator Schumer’s bill would be of immense benefit for tax-exempt arts-based organizations.
Itemized Charitable Deductions
Brief Overview of the Law
Longstanding U.S. policy and law has encouraged taxpayers to give back to their communities by providing incentives through the U.S. tax code. Since the Revenue Act of 1917, taxpayers have been provided with tax deductions for contributions to charitable organizations. Through the deduction, the government forgoes tax revenue based on the taxpayer’s tax bracket, but the full value of the gift is transferred to the tax-exempt organization.
For example, a person in the 28% bracket who donates $1,000 earned from income to a tax-exempt organization would have ordinarily been taxed $280 by the government on that income. By donating to the tax-exempt organization, $280 is exempted from the taxpayer income (and is, thus, lost revenue to the U.S. government); yet the full $1,000 value has been conferred to the tax-exempt organization. In this instance, the government would have subsidized tax-exempt organizations for a $1,000 contribution at less than a third of the cost.[xxvi]
Charitable contributions may only be deducted if they have been donated to a qualified organization and if they have been itemized on a Form 1040.[xxvii] Only the amount above and beyond the fair market value of any good or service received in return for the donation can be deducted (not the “cost” to the charity).[xxviii]
Why This Matters to You
Although the U.S. has a nearly century’s old policy and practice of allowing deductions without limitation, a number of current proposals exist that recommend placing a cap on how much a taxpayer can deduct based on charitable contributions.[xxix] Such proposals would seek to set a limit – a cap – on the amount or percentage that a taxpayer may deduct from money given to tax-exempt organizations. The proposals referenced have been articulated as a means of addresses long-term deficit and budget issues facing the federal government.
Significant reductions in the amount of deductions allowed will likely negatively impact charitable giving in a direct, adverse and disruptive way. Tax-exempt organizations and their allies and supporters should oppose efforts to limit in any substantial way the amount of deductions that a taxpayer may take as a result of charitable giving. As noted by Independent Sector, the government is “unlikely to find another vehicle that can leverage private spending for community services on a nearly 3-to-1 ratio.”[xxx]
Art-Specific Tax Policies and Regulations
As noted, this post is intended not just for artists, staff members and board members – non-lawyers – who are either contemplating starting a tax-exempt arts, or who are already working with or within such an organization. This post is for all of us who value the arts in our lives and our communities. The purpose of this post is to provide a basic understanding of federal tax policies not yet in place that, if implemented, would provide much needed support for artists and tax-exempt arts organizations.
Part 1 included an overview of the following three general tax policies and regulations: Estate and Gift taxes; IRA (Individual Retirement Account) Charitable Rollover; and Itemized Charitable Deductions.
This post, Part 2, will address the following art-specific tax policies and regulations:
Art-Related Tax Regulations and Policies
- Qualified Performing Artist Tax Benefit
- Deductions for donations of art by artists
Qualified Performing Artist Tax Benefit
Brief Overview of the Law
Enacted in the 1986 Tax Reform Act,[xxxi] the Qualified Performing Artist Tax Benefit identified that many performing artists were poor and absent support would not be able to survive, let alone continue as working artists.[xxxii]
According to the IRS, performing artists may qualify to deduct employee business expenses as an adjustment to gross income rather than as a miscellaneous itemized deduction.[xxxiii] Individuals who qualify include those who 1) have performed services in the performing arts as an employee for a minimum of two years, 2) have received a minimum of $200 from at any two employers, 3) have performing arts-related business expenses that amount to more than 10% of gross income from the performance of these services, and 4) have a gross income of $16,000 or less before deducting these business expenses.[xxxiv] Originally implemented 25 years ago, the provisions acknowledge the plain fact that many performing artist are poor. The provisions allow a qualified artist to deduct expenses “above the line,” which provides a more beneficial tax treatment than alternatives, including treating such deductions as itemized deductions.[xxxv]
Why This Matters to You
Deductions made before taxes are more advantageous for the taxpayer than those made as post-taxed deductions. Despite the noble intention, the cap that was set 25 years ago has remained static since enacted, despite inflation and cost of living increases. By definition, this provision applies only to performing artists.
Congress in 1986 recognized the immense need by working performing artists for support. However, this need is not limited to performing artists. Art-based tax-exempt organizations and artist should push Congress to extend the scope of this provision beyond performing artists to include all working artists who otherwise meet the qualifications.
Beyond the scope of those who apply, arts-based tax-exempt organizations should also address the base rate, which has been set at $16,000 since enactment. Any increases to the base rate would seem more than reasonable, given the significant time that has lapsed since enactment of the provision. In addition, tax-exempt performing arts organizations should seek to set a regular review for raises as well as annually, automatically adjust for inflation and cost-of-living increases.
Deductions for donations of art by artists
Brief Overview of the Law
The 1969 Tax Reform Act[xxxvi] eliminated the opportunity for authors, artists and other creators of artwork to donate an artwork or manuscript to a tax-exempt organization and receive a tax deduction based on the artwork’s fair-market value.[xxxvii] Since this change, creators of artwork have only been allowed to deduct the cost of materials used to create the donate work. On the other hand, curators, collectors and any other individual who owns a work of art may donate artwork and deduct the fair market value of said work.
Why This Matters to You
The 1969 change in law singled out artists and writers – creators of artwork, stripping the right to obtain fair-market value deduction in favor of cost of materials-based deductions. The difference in value between the two standards can be substantial. A painter’s work that sells on the market place for hundreds of dollars is comprised of relatively low-cost materials – brushes, paint, canvas, etc. – that constitute a fraction of the cost. Beyond the clear inequities of such a policy toward artists, the 1969 change in law has adversely affected tax-exempt museums, galleries, universities, and other collection institutions, as artists have been disincentivized from donating their works for public benefit.
Introduced on March 17, 2011 by Representative John Lewis of Georgia, the Artist-Museum Partnership Act of 2011[xxxviii]:
“amends the Internal Revenue Code to allow taxpayers who create literary, musical, artistic, or scholarly compositions or similar property a fair market value (determined at the time of contribution) tax deduction for contributions of such properties, the copyrights thereon, or both, to certain tax-exempt organizations, if such properties are properly appraised and are donated no sooner than 18 months after their creation.”[xxxix]
This bill seeks to undo the 1969 rollback on artists’ rights. Support for this bill, or a substantially similar bill, would provide working artists with much needed tax support. Moreover, enactment of such a provision would help widen the pipeline of artists’ donations to tax-exempt organizations for public benefit by incentivizing these contributions.
The Do’s and Don’ts of Advocacy for Tax Exempt Organizations
Despite popular misinformation, tax-exempt organizations may engage in both advocacy and lobbying. In speaking on advocacy, Arts for LA identifies the core element for effective advocacy as tied to creating relationships with decision-makers so that you can share valuable information and powerful stories of the impact that the arts can and do make on our lives. The Performing Arts Alliance (PAA) defines advocacy as “general efforts aimed at advancing a point of view;” lobbying is defined as those “activities aimed at influencing members of a lawmaking body on legislation.”[xl] The caveat: to maintain tax-exempt status, a tax-exempt organization may only participate in a non-substantial amount of lobbying activities, whereas no limits exists (outside of the mandate for a tax exempt organization to stay within its pre-defined mission) on the amount of advocacy an organization can do.
The PAA encourages tax-exempt arts organizations in particular to make active use of their “freedom of speech,” and convey as constituents to lawmakers the importance of continued support for the nonprofit arts sector.[xli] Moreover, an affiliate tax-exempt 501(c)(4) organization may be formed specifically for lobbying or political campaigning.[xlii] While such organizations do not offer the incentive to donors of providing tax-deductions for contributions, these organizations have far more freedom in when and how they engage in lobbying activity.[xliii]
One distinction that must be made clear is this: electionioneering is prohibited by law. Electioneering is defined as “actively working or taking an active stance on a political party or candidate.”[xliv] This article does not address support for parties or candidates. Rather, this article urges tax-exempt arts organizations to address issues (policies and regulations) that affect their existence. In that vain, tax-exempt organizations may support or oppose (and therefore devote organizational resources in support of or in opposition to) “referenda, ballot initiatives, propositions, tax levies” and other ‘issue-based’ items that may be placed on voting ballots, so long as such organizations “do not cross the line into party or candidate endorsement.”[xlv]
For more information on the rules and regulations regarding lobbying, electioneering, and public advocacy, including specific tactics that may be of use to tax-exempt organizations, please see the Appendix.
Tax-exempt organizations in general should remain ever mindful of the way in which tax policies and regulations will incentivize (or disinecentivize) giving, as this effects their very survival. Arts organizations in particular should make concerted efforts to actively engage the public and to educate elected officials about the inequities inherent to current policies.
Many of the reforms discussed are not needed immediately, as stopgap policies and regulations have been currently enacted. But tax reform will take time. And good tax reform will take even longer.
Bio: With a background in both the arts and the law and experience with domestic and international advocacy, Derrick Alan Everett serves proudly as a communications and policy associate at the progressive public policy firm of The Raben Group. There, he almost exclusively serves nonprofit organizations, including national and regional arts and civil rights groups. His duties include a range of strategic planning work, communications and online advocacy campaign services, and grassroots and grasstops advocacy. He also assists with coalition building, public outreach and engagement, and public policy development.
As a theater artist, Derrick has collaborated as writer, actor, director, and dramaturg on a number of productions over the years. Current projects include dramaturgical support for Erik Ehn’s Soulographie project and development through the Robey Theater Company’s Playwrights Lab of his plays The Road to Rilima, which explores the aftermath of the Rwandan genocide.
Derrick earned an LL.M in Entertainment and Media Law at Southwestern Law School. He holds a J.D. from Northwestern University School of Law, an M.F.A. in Critical Studies (Creative Writing) from California Institute of the Arts, and a BA in English with minors in Writing and American Culture Studies from Washington University.
Image: "Sunset Over Tax City," by Flickr user stallio. Creative Commons licensed for fair use.
Appendix: Resources for Further Inquiry
Arts for LA (resources arts advocates, including various advocacy tools, research, reports and other useful information), available at http://www.artsforla.org/resources.
Advocacy Basics for Performing Arts Organizations, Performing Arts Alliance, available at http://paa.convio.net/site/PageServer?pagename=AdvocacyBasics.
Artist as Philanthropist: Strengthening the Next Generation of Artist-Endowed Foundations - a study of the emerging artist-endowed foundation field in the US (Vol. I and Vol II), Aspen Institute, available at http://www.aspeninstitute.org/policy-work/nonprofit-philanthropy/Publications/The-Artist-as-Philanthropist.
Independent Sector (Publications and Webinars on Lobbying Guidelines and IRS rules for nonprofit organizations), available at http://independentsector.org/resources
Performing Arts Alliance (resources on lobbying basis; advocacy for performing arts organizations; regulations; tax incentives for giving), available at http://theperformingartsalliance.org/site/PageServer?pagename=AdvocacyBasics
Council on Foundations, http://cof.org/programsandservices/publicpolicy/
AFET Statement of Principles on Estate Tax Legislation, http://www.faireconomy.org/estate_tax/AFET_principles
Micah Burch, National Funding for The Arts and Internal Revenue Code § 501(C)(3), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1558682.
Michele M. Stanton, Texas Accountants and Lawyers for the Arts, Taxation of the Visual and Performing Artist: An Insight into Federal Income Tax (2010), available at http://www.talarts.org/wordpress/wp-content/uploads/2010/09/2010-Booklet1.pdf.
Tax-Exempt Organization Chart, http://www.hurwitassociates.com/p_l_charts_te_reference2.pdf.
Tomer J. Inbar, Morgan, Lewis & Bockius LLP, Overview of Lobbying Disclosure Act, available at http://www.morganlewis.com/pubs/Tax%20Exempt%20and%20Charitable%20Organizations.pdf.
Urban Institute, Investing in Creativity: A Study of the Support Structure for U.S. Artists, available at http://www.urban.org/UploadedPDF/411311_investing_in_creativity.pdf.
[i] Tax Incentives for Nonprofit Charitable Giving, Performing Arts Alliance, available at http://theperformingartsalliance.org/site/PageServer?pagename=tax_issue_center.
[iv] Publication 950, supra note 17, at 5.
[vii] Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. No. 107-16, § 115, Stat. 38 (2001), available at http://www.gpo.gov/fdsys/pkg/BILLS-107hr1836enr/pdf/BILLS-107hr1836enr.pdf.
[viii] The Estate Tax and Charitable Giving, Congressional Budget Office 4-5, available at http://www.cbo.gov/ftpdocs/56xx/doc5650/07-15-CharitableGiving.pdf.
[ix] Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, Pub. L. No. 111-312, § 124, Stat. 3296 (2010) available at http://www.gpo.gov/fdsys/pkg/BILLS-111hr4853enr/pdf/BILLS-111hr4853enr.pdf.
[x] The Estate Tax and Charitable Giving, supra note 23, at 3.
[xi] The Estate Tax and Charitable Giving, supra note 23, at Preface.
[xii] The Estate Tax and Charitable Giving, supra note 23.
[xiii] Tax Incentives for Nonprofit Charitable Giving, Performing Arts Alliance, available at http://theperformingartsalliance.org/site/PageServer?pagename=tax_issue_center.
[xv] Publication 590, supra note 29.
[xviii] Publication 590, supra note 29, at 57-71.
[xix] John J. Topoleski, Qualified Charitable Distributions from Individual Retirement Accounts: A Fact Sheet, Congressional Research Service 4 (2010), available at http://aging.senate.gov/crs/pension21.pdf.
See Pension Protection Act of 2006, Pub. L. No. 109-280, 120 Stat. 780 (2006), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_public_laws&docid=f:publ280.pdf
[xx] Publication 590, supra note 29, at 33.
Note: Contributions to donor-advised funds and private foundations generally do not qualify for the tax-exempt Qualified Charitable Distributions provision.
[xxii] Topoleski, supra note 34, at 1.
[xxiii] IRA Charitable Rollover, supra note 36.
[xxiv] S. 557, 112th Cong. (2011) (Public Good IRA Rollover Act - A bill to amend the Internal Revenue Code of 1986 to expand tax-free distributions from individual retirement accounts for charitable purposes), available at http://www.govtrack.us/congress/bill.xpd?bill=s112-557.
[xxv] Programs and Services, Council on Foundations, available at http://www.cof.org/programsandservices/publicpolicy/takeaction.cfm?navItemNumber=16355
[xxvi] Preserve the Deduction for Charitable Giving, Independent Sector, available at http://www.independentsector.org/uploads/Policy_PDFs/Charitablededuction4272011_2.pdf.
[xxviii] Id., at 2-3.
[xxix] The Charitable Deduction, Independent Sector, available at http://www.independentsector.org/charitable_deduction?s=itemized%20deduction
Proposals noted include President Obama’s Fiscal Year Budget, President Obama’s Deficit Reduction Framework as outlined in his April 13, 2011 televised speech, the Bipartisan Fiscal Deficit Commission, and a rumored piece of legislation to be offered by the “so-called Senate "Gang of Six," consisting of Senators Mark Warner (D-VA), Saxby Chambliss (R-GA), Kent Conrad (D-SD), Richard Durbin (D-IL), Tom Coburn (R-OK), and Mike Crapo (R-ID).”
[xxx] The Charitable Deduction, supra note 44.
[xxxi] Tax Reform Act of 1986, Pub. L. No. 99-514 (1986), summary available at http://thomas.loc.gov/cgi-bin/bdquery/z?d099:H.R.3838:.
[xxxii] Tax Incentives for Nonprofit Charitable Giving, Performing Arts Alliance, available at http://theperformingartsalliance.org/site/PageServer?pagename=tax_issue_center.
[xxxv] Tax Incentives for Nonprofit Charitable Giving, Performing Arts Alliance, available at http://theperformingartsalliance.org/site/PageServer?pagename=tax_issue_center.
[xxxvi] Tax Reform Act of 1969, Pub. L. 91-172 (1969), available at http://ia700309.us.archive.org/7/items/summaryofhr1327000jcs6169/summaryofhr1327000jcs6169_bw.pdf.
[xxxvii] Report on Tax Treatment of Artists’ Deductions, National Endowment for the Arts 1 (2007), available at http://www.aamd.org/advocacy/documents/NEA-report.pdf.
[xxxviii] H.R. 1531, 112th Cong., available at http://www.gpo.gov/fdsys/pkg/BILLS-112hr1531ih/pdf/BILLS-112hr1531ih.pdf.
[xxxix] H.R. 1531 Bill Summary & Status, CRS Summary, available at http://thomas.loc.gov/cgi-bin/bdquery/z?d112:HR01531:@@@D&summ2=m&.
[xl] Advocacy Basics for Performing Arts Organizations, Performing Arts Alliance, available at http://paa.convio.net/site/PageServer?pagename=AdvocacyBasics.
[xli] Advocacy Basics for Performing Arts Organizations, Performing Arts Alliance, available at http://paa.convio.net/site/PageServer?pagename=AdvocacyBasics.
[xliv] Advocacy Basics for Performing Arts Organizations, Performing Arts Alliance, available at http://paa.convio.net/site/PageServer?pagename=AdvocacyBasics.