I meant to send this to the list last week, but in my rush to get out the
door I misdirected the message.
Someone asked about taxation of an unincorporated section 527
organization. I think that if a group of persons (individual or
entities) associate in an unincorporated organization with the purpose of
raising money to support a candidate, the resulting section 527
organization should be taxed as a partnership. As a result, any
income that is not exempt-function income (supporting a candidate)
passes through and is taxable to the "partners." An
unincorporated single member organization is simply an extension of its
single participant.
Also, to respond to Ned Foley's question, a section 527 organization is
an organization formed to support a candidate in an election at any
level, not just federal. The Internal Revenue Service ruled that an
organization engaged in issue advertising with the avowed purpose of
supporting candidates, although not crossing the line to become a
political organization under the FECA (pre-BCRA), could qualify as a
section 527 organization. I agree with Don Tobin that the rulings
are misplaced, that issue advocacy on behalf of a candidate should have
been treated as political activity subject to regulation under the
FECA. Fortunately that problem is fixed, although a section 527
organization presumably can engage in issue activity on behalf of a
candidate outside of the window immediately preceding an
election.
Read all about 527 organizations in Don Tobin's article "Anonymous
Speech and Section 527 of the Internal Revenue Code, 37 Georgia Law
Review 611 (2003), or my earlier article, "An Essay on Federal
Income Taxation and Campaign Finance Reform, 54 Fla. Law Review 1
(2002).
Dan Simmons
At 05:40 PM 12/12/2003 -0500, you wrote:
Nothing in 527 requires a political
organization to be incorporated. Section 527(e) specifically
indicates that a political organization is a "party, committee,
association, fund, or other organization (whether or not incorporated) .
. .
So an unincorporated association would still be a political organization
under Section 527 and would only be taxed on its exempt function
income. Moreover, section 2501(a)(5) of the Code (I.R.C.) exempts
contributions to political organizations, as defined by 527(e) from gift
tax.
So both the organization and Soros are off the hook.
In any event, there is dispute among tax people whether a 527 could
actually be subject to tax on donations even absent the code
provision.
Donald Tobin
Moritz College of Law
Assistant Professor
tobin.46@osu.edu
Donald B. Tobin
Assistant Professor of Law
The Ohio State University
Michael E. Moritz College of Law
55 West 12th Avenue
Columbus, OH 43210
Phone: (614) 688-3539
Daniel L. Simmons
Professor of Law
School of Law
University of California
400 Mrak Drive
Davis, California 95616
Telephone 530 752-2757
Fax 530 754-5311