Читать книгу The Tax Law of Charitable Giving - Bruce Hopkins R., Bruce R. Hopkins, David Middlebrook - Страница 101
NOTES
Оглавление1 1 IRC § 170(a)(1); Reg. § 1.170A-1(a)(1). E.g., Christensen v. Commissioner, 40 T.C. 563 (1963).
3 3 Reg. § 1.170A-1(a)(1). See also Rev. Rul. 75-348, 1975-2 C.B. 75; Rev. Rul. 55-410, 1955-1 C.B. 297; Mann v. Commissioner, 35 F.2d 873 (D.C. Ct. App. 1929). See § 3.8.
4 4 Glynn v. Commissioner, 76 T.C. 116 (1981), aff'd in unpublished opinion (1st Cir. 1982).
5 5 E.g., Rev. Rul. 69-93, 1969-1 C.B. 139 (holding that title to real estate is transferred on the date that the “deed passed,” not on the previous date when the parties executed a contract for the sale of the property). The U.S. Tax Court held that a sale of land occurred when the “title was finally approved and the deed of conveyance was signed passing title and the right of possession to the vendee” (Wurtsbaugh v. Commissioner, 8 T.C. 183, 189 (1947)).
6 6 Reg. § 1.170A-1(b), which states that, “[o]rdinarily, a contribution is made at the time delivery is effected.”
7 7 See § 8.3.
8 8 Reg. § 1.170A-1(e), which states that, “[i]f as of the date of a gift a transfer for charitable purposes is dependent upon the performance of some act or the happening of a precedent event in order that it might become effective, no deduction is allowable unless the possibility that the charitable transfer will not become effective is so remote as to be negligible. If an interest in property passes to, or is vested in, charity on the date of the gift and the interest would be defeated by the subsequent performance of some act or the happening of some event, the possibility of occurrence of which appears on the date of the gift to be so remote as to be negligible, the deduction is allowable.”
10 10 Winokur v. Commissioner, 90 T.C. 733, 740 (1988).
11 11 E.g., LaGarde v. Commissioner, 76-1 U.S.T.C. ¶ 9248 (N.D. Ala. 1975); Mellon v. Commissioner, 36 B.T.A. 977 (1937). Also Murphy v. Commissioner, 61 T.C.M. (CCH) 2935 (1991). Instances in which the “donor” retained too much dominion and control over the property that was the subject of the gift are Woods v. Commissioner, 58 T.C.M. (CCH) 673 (1989), aff'd in unpublished opinion (6th Cir. 1991); Stjernholm v. Commissioner, 58 T.C.M. (CCH) 389 (1989), aff'd in unpublished opinion (10th Cir. 1991); Roughen v. Commissioner, 54 T.C.M. (CCH) 510 (1987).
12 12 Nehring v. Commissioner, 131 F.2d 790 (7th Cir. 1942). Also Jordan v. United States, 297 F. Supp. 1326 (W.D. Okla. 1969).
13 13 Reg. § 1.170A-1(b). Also Estate of Witt v. Fahs, 160 F. Supp. 521 (S.D. Fla. 1956); Estate of Spiegel v. Commissioner, 12 T.C. 524 (1949).
14 14 The IRS wrote that a charitable contribution in the form of a check is deductible in the tax year in which the check was delivered, “provided the check is honored and paid and there are no restrictions as to time and manner of payment thereof” (Rev. Rul. 54-465, 1954-2 C.B. 93).
15 15 Estate of Metzger v. Commissioner, 100 T.C. 204 (1993), aff'd, 94-2 U.S.T.C. ¶ 60,179 (4th Cir. 1994).
16 16 See § 6.2(h).
17 17 Estate of Metzger v. Commissioner, 100 T.C. 204, 215 (1993).
18 18 Id.
19 19 Rev. Rul. 67-376, 1967-2 C.B. 351.
20 20 Priv. Ltr. Rul. 8706011.
21 21 Griffin v. Commissioner, 49 T.C. 253, 261 (1967), in which the Tax Court wrote: “A postdated check is not a check immediately payable but is a promise to pay on the date shown. It is not a promise to pay presently and does not mature until the day of its date, after which it is payable on demand the same as if it had not been issued until that date although it is, as in the case of a promissory note, a negotiable instrument from the time issued.”
22 22 Estate of Spiegel v. Commissioner, 12 T.C. 524 (1949). Consequently, these funds should not be in the donor's estate for estate tax purposes (e.g., Estate of Belcher v. Commissioner, 83 T.C. 227 (1984)). This rule does not apply, however, with respect to gifts by check written to noncharitable donees (McCarthy v. United States, 86-2 U.S.T.C. ¶ 13,700 (7th Cir. 1986)).
23 23 See § 4.8.
24 24 Rev. Rul. 78-38, 1978-1 C.B. 67. This ruling revoked Rev. Rul. 71-216, 1971-1 C.B. 96 (holding that a person making a contribution to a qualified charitable organization by a charge to a bank credit card is entitled to a charitable contribution deduction for the amount contributed in the tax year in which the donor paid the amount to the bank).
25 25 Rev. Rul. 78-38, 1978-1 C.B. 67, 68.
26 26 Granan v. Commissioner, 55 T.C. 753 (1971).
27 27 See § 4.8.
28 28 Rev. Rul. 78-38, 1978-1 C.B. 67.
29 29 Rev. Rul. 80-335, 1980-2 C.B. 170.
30 30 E.g., Commissioner v. Bradley, 56 F.2d 728 (6th Cir. 1932).
31 31 Reg. § 1.170A-1(b). Of course, in applying this rule, it must be shown that the intermediate transferee is, in fact, an agent of the donor; e.g., Ferguson v. Commissioner, 99-1 U.S.T.C. ¶ 50,412 (9th Cir. 1999), aff'g 108 T.C. 244 (1997); Estate of Sawade v. Commissioner, 795 F.2d 45 (8th Cir. 1986); Greer v. Commissioner, 70 T.C. 294 (1978), aff'd on another issue, 634 F.2d 1044 (6th Cir. 1980); Londen v. Commissioner, 45 T.C. 106 (1965). Whether a person is, in fact, an agent of another is a question of state law. See § 8.1.
32 32 E.g., Morrison v. Commissioner, 53 T.C.M. (CCH) 251 (1987).
33 33 McCall v. United States, 72-1 U.S.T.C. ¶ 9263 (D.S.C. 1972).
34 34 Richardson v. Commissioner, 49 T.C.M. (CCH) 67, 73 (1984).
35 35 See Reg. § 1.170A-1(b).
36 36 Ferguson v. Commissioner, 99-1 U.S.T.C. ¶ 50,412 (9th Cir. 1999).
37 37 This opinion, with its focus on ripening of stock into a fixed right to receive money, illustrates that this matter of the timing of charitable gifts, for deductibility purposes, ties in with the doctrine of anticipatory assignment of income (see § 2.1(h)) and the step transaction doctrine (see § 3.7). The facts in another court opinion amount to a case study as to how not to go about structuring a charitable contribution of stock, with lessons abounding for donors, lawyers, accountants, and appraisers (Bergquist v. Commissioner, 131 T.C. 8 (2008)).
38 38 Kingsrow Enters., Inc. v. Metromedia, Inc., 397 F. Supp. 879 (S.D.N.Y. 1975).
39 39 17 U.S.C. § 28 (1976).
40 40 The copyright “is not transferred by mere physical delivery, or other acquisition, of the certificate” (Kingsrow Enters, Inc. v. Metromedia, Inc., 397 F. Supp. 879, 881 (S.D.N.Y. 1975)).
41 41 Smith v. Commissioner, 42 T.C.M. (CCH) 431, 437-38 (1981).
42 42 Rev. Rul. 78-38, 1978-1 C.B. 67. This rule assumes that the notes represent bona fide debt (e.g., Lippmann v. Commissioner, 52 T.C. 130 (1969)).
43 43 Rev. Rul. 68-174, 1968-1 C.B. 81. Also O'Neil v. United States, 82-1 U.S.T.C. ¶ 9209 (E.D. Cal. 1982), aff'd without opinion (9th Cir. 1982); Guren v. Commissioner, 66 T.C. 118 (1976); Petty v. Commissioner, 40 T.C. 521 (1963).
44 44 See text accompanying supra note 1. Also Story III v. Commissioner, 38 T.C. 936 (1962); Andrus v. Burnet, 50 F.2d 332 (D.C. Ct. App. 1931).
45 45 Rev. Rul. 68-174, 1968-1 C.B. 81.
46 46 Watson v. Commissioner, 69 T.C. 544 (1978), aff'd, 613 F.2d 594 (5th Cir. 1980).
47 47 Priv. Ltr. Rul. 8420002.
48 48 Rev. Rul. 82-197, 1982-2 C.B. 72; Rev. Rul. 78-181, 1978-1 C.B. 261.
49 49 See § 2.4(c).
50 50 See Private Foundations ch. 4.
52 52 Priv. Ltr. Rul. 9335057.
53 53 Tech. Adv. Mem. 9828001.
54 54 See Private Foundations ch. 4.
55 55 Priv. Ltr. Rul. 200530007, superseding Priv. Ltr. Rul. 200312003.
56 56 See Private Foundations ch. 5.
57 57 Reg. § 53.4941(d)-2(c)(3).
58 58 See Private Foundations ch. 10.
59 59 IRC § 512(b)(5). See § 3.6.
60 60 Priv. Ltr. Rul. 9623035.
61 61 In a federal tax controversy, state law controls the determination of a taxpayer's interest in property, while the tax consequences are determined in accordance with federal law (e.g., United States v. Nat'l Bank of Commerce, 472 U.S. 713, 722 (1985)).
62 62 E.g., Dyer v. Commissioner, 58 T.C.M. (CCH) 1321 (1990); Brotzler v. Commissioner, 44 T.C.M. (CCH) 1478 (1982); Guest v. Commissioner, 77 T.C. 9 (1981); Alioto v. Commissioner, 40 T.C.M. (CCH) 1147 (1980); Dodge, Jr. v. Commissioner, 27 T.C.M. (CCH) 1170 (1968); Johnson v. United States, 280 F. Supp. 412 (S.D.N.Y. 1967).
63 63 Douglas v. Commissioner, 58 T.C.M. (CCH) 563 (1989).
64 64 Kaplan v. Commissioner, 91 T.C.M. (CCH) 695 (2006).
65 65 Tidler v. Commissioner, 53 T.C.M. (CCH) 934 (1987).
66 66 See § 4.14.
67 67 In general, see § 7.6.
68 68 Mecox Partners LP v. United States, 117 A.F.T.R.2d (RIA) 2016-593 (S.D.N.Y. 2016). Also Zarlengo v. Commissioner, 108 T.C.M. (CCH) 155 (2014); Rothman v. Commissioner, 104 T.C.M. (CCH) 126 (2012), supp. by 103 T.C.M. (CCH) 1864 (2012).
69 69 Ten Twenty Six Investors v. Commissioner, 113 T.C.M. (CCH) 1516 (2017).
70 70 See § 7.6(d), text accompanied by note 216.
71 71 See IRC § 1361(a)(2).
72 72 IRC § 170(a)(2); Reg. § 1.170A-11(b). An illustration of this rule appears in Priv. Ltr. Rul. 7802001. This rule was created because corporations intending to make the maximum charitable contribution allowable as a deduction experienced difficulty in determining, before the end of the tax year, what their net income would be. S. Rep. No. 831, 81st Cong., 1st Sess. (vol. 3) 3–4 (1949).
73 73 Reg. § 1.170A-11(b)(2). In Chase v. Commissioner, 19 T.C.M. (CCH) 234 (1960), and Wood-Mosaic Co. v. United States, 160 F. Supp. 63 (W.D. Ky. 1958), charitable deductions were denied because there was no evidence that the corporations authorized the contributions during the tax years involved.
74 74 Priv. Ltr. Rul. 7802001. This rule was created because corporations intending to make the maximum charitable contribution allowable as a deduction experienced difficulty in determining before the end of the tax year what their net income would be (S. Rep. No. 831, 81st Cong., 1st Sess. (vol. 3) 3–4 (1949)).
75 75 See § 4.16.
76 76 See IRC § 1361(a)(1).
77 77 See § 4.18.
78 78 IRC § 1366(a)(1)(A).
79 79 Rev. Rul. 2000-43, 2000-2 C.B. 333.
80 80 IRC § 1363(b). The election provided by IRC § 170(a)(2) is not available to an individual.
81 81 IRC § 703(a)(2)(C).
82 82 IRC § 1366(a)(1)(A).
83 83 IRC § 1367(a)(2)(B).
84 84 IRC § 1367(a)(2). This rule is comparable to the basis adjustment rule in the case of charitable contributions made by a partnership (see § 6.16).
85 85 The IRS ruled that, if an S corporation made a charitable contribution of appreciated property during a tax year beginning after December 31, 2005, and before January 1, 2008, the amount of the charitable contribution deduction a shareholder of the corporation may claim may not exceed the sum of (1) the shareholder's pro rata share of the fair market value of the contributed property over the property's adjusted tax basis and (2) the loss limitation amount (IRC § 1366(d)) that is allocable to the contributed property's adjusted basis (Reg. § 1.1366-2(a)(4)). Rev. Rul. 2008-16, 2008-1 C.B. 585.
86 86 IRC § 703(a)(2)(C).
87 87 IRC § 702(a)(4); Reg. §§ 1.702-1(a)(4), 1.703-1(a)(2)(iv).
88 88 Reg. § 1.170A-1(h)(7).
90 90 Rev. Rul. 96-11, 1996-1 C.B. 140.
91 91 IRC § 705(a)(1).
92 92 IRC § 705(a)(2).
93 93 IRC § 705(a)(1)(B), (a)(2)(B).
94 94 IRC § 705(a)(1)(B).
95 95 IRC § 705(a)(2)(B).
96 96 Another illustration of these rules is available in Priv. Ltr. Rul. 200208019, concerning the federal tax consequences of the making of a qualified conservation contribution (see § 7.6) by a partnership.
97 97 IRC § 704(d).
98 98 Act § 13503(b).
99 99 See § 2.6, third bulleted item.
100 100 Similar issues arise in the context of contributions of vehicles. See § 7.24.
