Will Destruction Of Johnson Amendment Destroy Charity?
President Trump made a down payment on his promise with an executive order. Unless you apply the “truthful hyperbole” standard that then developer Trump recommended in the Art of the Deal, the executive order did not destroy the Johnson amendment. Arguably it did not do anything at all to it. Section 5201 of the House version of the Tax Cuts and Jobs Act is much more robust.
Under the provision, this language, known as the Johnson amendment, is qualified so that an organization exempt from tax under Code section 501(c)(3) would not fail to be treated as organized and operated exclusively for its respective non-profit purpose for engaging in political speech, assuming such political speech is made in the ordinary course of the organization’s business and the associated expenses of that speech are de minimis
That hardly puts the Johnson amendment on the eve of destruction, but it does address the concern that generated the fairly silly protest known as Pulpit Freedom Sunday which fell on October 2 this year. The idea is that preachers would give politically oriented sermons, record them and send them to the IRS – daring, nay double daring the IRS to come after them. Given all the attention given to Pulpit Freedom Sunday, it probably worked up to a triple dawg dare.
Tax Cuts And Jobs Act – House Bill Invokes The Culture War With Unborn Child Definition
A gift to an unborn child is considered a present gift and not a future gift. Here is a tax court decision from 1940 on point.
The term “life in being” is part of the Rule Against Perpetuities originally and has to do with the maximum term of a trust under common law. If the child is ventre sa mere (or in utero) at the time of the gift, then the child is “in being”. As Lord Chief Justice Willis (you remember him don’t you?) said:
” An infant en ventre sa mere, or in the mother’s womb, is supposed in law to be born, for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it, and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.”
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Over and over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.