[EL] 501(c)(3)s and Impeachment Advocacy

[Aprill, Ellen]

A couple small additions to Tim Mooney's fine piece. IRS guidance on supporting or opposing nominations for federal judges offers an important parallel, I believe.

Notice 88-76, 1988-1 C.B. 392, the IRS ruled that attempt to influence nomination of federal judges would constitute lobbying, but not campaign intervention because such nominations did not involve campaigns for elective office.

However, section 527 applies to appointed as well as elected office.  In theory, the IRS could impose the 527(f) tax on 501(c)(3)s that support or oppose impeachment. In Announcement 88-114, 1988-37 I.R.B. 26, the IRS proposed characterizing attempts to influence the confirmation of a federal judge as subject to section 527 and requested comments on the proposal.  (See GCM 39,694 for background.) No decision has ever been announced on this issue, and I don't personally know of any attempts to impose the 527 tax on 501(c)(3)s.  Perhaps others do.

I apologize for not including links to the notice, announcement or GCM, but they did not come up in any of my searches, except behind paywalls.

  Ellen
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Ellen P Aprill​  (she/her/hers)
John E Anderson Professor in Tax Law ​
Professor of Law
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