Читать книгу The Tax Law of Charitable Giving - Bruce Hopkins R., Bruce R. Hopkins, David Middlebrook - Страница 38

A donor is a person who makes a gift. A donor obviously can make a gift (or contribution) to a charitable organization. A donor may or may not obtain a contribution deduction as the result of a charitable gift. Many factors can operate to determine this outcome.²⁶⁸

In a somewhat similar situation, a nonprofit development corporation was the fee simple owner of two buildings. A partnership was a long-term lessee of the buildings. These two entities collectively transferred a façade easement to a qualified charitable organization. The partnership claimed a $4.5 million charitable contribution deduction. The partnership (quite correctly) contended that the Internal Revenue Code does not explicitly require that a donor of an easement own the underlying real property. The U.S. Tax Court ruled that the partnership had only a leasehold interest for a term of years, which under state law is personal property.²⁶⁹ That is, the partnership did not have a fee interest in the property. Thus, the in-perpetuity requirement, imposed in connection with gifts of easements,²⁷⁰ could not be satisfied because only the owner of real property or holder of a fee interest is able to grant a perpetual conservation restriction. The court stated that, being a “time-limited lessee,” the partnership is “incapable” of making a contribution protected in perpetuity.²⁷¹ The court wrote that the partnership, as lessee, “does not have the power to impose perpetual restrictions on property in which it does not have an absolute right.”²⁷² The matter came down to this: the partnership “cannot give what it does not have.”²⁷³

This presumably is obvious but, in the case of a contribution, the donor must be the person who actually makes it. As an illustration of this point (which rarely arises), the parents of a deceased child established a scholarship fund as a memorial to the child; it is structured as an irrevocable trust. The trust was funded with life insurance proceeds; it made scholarship grants out of the trust's investment income. This couple did not include the investment income of the trust in their gross income; they, however, claimed the scholarship payments as charitable contributions deductions. These deductions were, of course, denied.²⁷⁴

There are several types of donors, that is, several categories of persons who can make contributions to charitable organizations. They are individuals, C corporations,²⁷⁵ S corporations,²⁷⁶ partnerships,²⁷⁷ limited liability companies,²⁷⁸ trusts,²⁷⁹ and estates.²⁸⁰

Organizations that are pass-through entities are not entitled to charitable contribution deductions. The deductions are instead passed through to the shareholders, partners, or members of the organization.²⁸¹

A charitable contribution may be effected through the efforts of an agent acting for the donor.²⁸² For this to occur, the principal must be the party who bears the economic burden of the charitable contributions involved. For example, an individual, the chief executive officer of a company, was allowed to deduct charitable contributions made by the company because he reimbursed the company for the amount of the gifts, although another “circular flow of funds” resulted in the company bearing the economic burden of gifts so that the individual's corresponding deductions were disallowed.²⁸³