9albion
Storyparadox1
4confidencegames
1lookingforthegoodwar
399
Betty Friedan 360x1000
2lafayette
Margaret Fuller4 360x1000
2gucci
Maurice B Foley 360x1000
Spottswood William Robinson 360x1000
Anthony McCann1 360x1000
2confidencegames
Gilgamesh 360x1000
11albion
lifeinmiddlemarch1
Margaret Fuller 360x1000
7confidencegames
James Gould Cozzens 360x1000
Richard Posner 360x1000
Tad Friend 360x1000
Adam Gopnik 360x1000
Margaret Fuller 2 360x1000
6confidencegames
1confidencegames
2albion
Office of Chief Counsel 360x1000
2defense
George F Wil...360x1000
3albion
storyparadox3
Margaret Fuller3 360x1000
Maria Popova 360x1000
Stormy Daniels 360x1000
Margaret Fuller1 360x1000
11632
Thomas Piketty2 360x1000
2paradise
Lafayette and Jefferson 360x1000
299
Mary Ann Evans 360x1000
Margaret Fuller5 360x1000
Susie King Taylor2 360x1000
1transcendentalist
Margaret Fuller2 360x1000
2trap
Ruth Bader Ginsburg 360x1000
4albion
3paradise
5albion
13albion
Thomas Piketty3 360x1000
499
3theleastofus
199
Susie King Taylor 360x1000
1trap
Mark V Holmes 360x1000
1madoff
Samuel Johnson 360x1000
lifeinmiddlemarch2
1lauber
1paradide
Anthony McCann2 360x1000
1theleasofus
LillianFaderman
1lafayette
1jesusandjohnwayne
2lookingforthegoodwar
1gucci
Brendan Beehan 360x1000
storyparadox2
Edmund Burke 360x1000
1albion
8albion'
AlexRosenberg
5confidencegames
Learned Hand 360x1000
3confidencegames
1defense
Thomas Piketty1 360x1000
1falsewitness
7albion
14albion
1empireofpain
George M Cohan and Lerarned Hand 360x1000
6albion
2theleastofus
12albion
2jesusandjohnwayne
2transadentilist
3defense
10abion
2falsewitness

Originally published on Forbes.com April 18th, 2014

The IRS Office of Chief Counsel probably has some of the smartest lawyers in the country working in it.  Some of the odd provisions of the Tax Code have them answering questions that might be better handled by other professionals.  For example, I think it is possible that social workers might have come up with a different answer than Senior Counsel Susan Kassell came up with in a memorandum designated CCA 201414014.  The question was about how much use poor people might have for wrinkle creams, hair gels and a plethora of similar products.

You may be wondering why a senior tax attorney in the IRS Chief Counsel office would have to answer such a question.  It is a little complicated, but I will do my best.

The general rule is that you get a charitable deduction in the amount of the fair market value of property that you give to qualified charities.  That’s too simple of course.  So you have to reduce the charitable contribution by the amount of gain which would not be long term capital if you sold the property.

So, generally, if a company were to give some of its inventory to a charity, the deduction will be limited to the company’s basis in the inventory.  There is an exception to the exception, though.  If the inventory is given to a charity with an exempt function of caring for the ill, the needy or infants and it is stuff that will be used to care for them, the reduction is cut in half.  I’ll give you an illustration.

Think of Andy Warhol’s iconic Campbell Soup paintings.  They appreciated mightily in value.  According to this story, a dealer paid $1,000 for 32 of them and sold the group for $15 million.  Say you had had that kind of foresight and had bought one of them for $30, but being a generous soul donated it to the Worcester Art Museum.  Using round numbers and assuming one Warhol soup can is like another, you would get a charitable deduction of $500,000.

The dealer, however, might have his donation limited to $30 (although I bet we could find a workaround).  If Andy Warhol had made the contribution, his deduction would be the cost of the material.  If on the other hand, the Campbell Soup Company were to give 500,000 cans of soup to the Worcester County Food Bank that it could have sold for $1.00 each that cost it $0.50 to manufacture, it would get a deduction of $375,000.  If, on the third hand, it gave the soup to the Worcester Art Museum, which sold it in order to buy a painting of a can of soup, the deduction would be only $250,000.

So that’s why the IRS has to decide whether hair care products and nail polish are things that the needy need.

Here are the high points of the analysis.

Taxpayer’s contributions of wrinkle creams, hair gels, perfumes, hair sprays, hair texturizers, curling irons, hair dyes, nail polishes, epilators, and hair restoration treatments (the “Donated Products”), are not “qualified contributions” that are eligible for the enhanced deduction under  I.R.C. § 170(e)(3), because they are not needed for the care of the ill, the needy, or infants under  I.R.C. § 170(e)(3)(A)(i) and  Treas. Reg. § 1.170A-4A(b)(ii).
Congress enacted  I.R.C. § 170(e)(3) in response to a decline in donations of food, clothing, medical equipment and supplies, and other necessary items for the needy and disaster victims. ……The legislative history is clear that Congress intended only “certain types” of inventory property to qualify for the enhanced deduction.
 The Donated Products are not medical in nature, they serve no medical purpose, and they do not alleviate or cure an existing illness. Therefore, Taxpayer has not shown that the Donated Products are needed for the care of the ill.

The Donated Products do not satisfy a bona fide need of infants. The Donated Products are luxury items rather than necessities of life. Therefore, Taxpayer has not shown that the Donated Products are needed for the care of an infant or minor child.

Treas. Reg. § 1.170A-4A(b)(2)(ii)(D) defines a needy person as a person who lacks the necessities of life, involving physical, mental, or emotional well-being, as a result of poverty or temporary distress. …………. Since a person may be needy in some respects and not needy in other respects, care of the needy must relate to the particular need that causes the person to be needy.

The Donated Products have no relation to alleviating or satisfying a “necessity of life” such as the need for food, clothing, or shelter (or other basic needs). A person who cannot afford the Donated Products may be needy, but the Donated Products do not relate to the specific need that caused the person to be needy (such as lack of financial resources, for example). See  Treas. Reg. § 1.170A-4A(b)(2)(ii)(E) (“a person whose temporary need arises from a natural disaster may need temporary shelter and food but not recreational facilities”). The Donated Products are luxury items rather than “necessities of life;” they do not alleviate or satisfy an existing need within the meaning of  Treas. Reg. § 1.170A-4A(b)(2)(ii)(E).

I really think it is possible that someone could have reasonably come up with a different answer.  There are probably some people who if quite ill might get a valuable morale boost from a bit of nail polish.  What do you think?

You can follow me on twitter @peterreillycpa.