Interesting 527 Information

[TheRovingGourmet]

http://www.campaignlegalcenter.org/attachment.html/Fran+Tax+Notes+Article+for+Posting.pdf?id=1209

Why do exempt organizations prefer regulation by the Service under the code and attempt to use tax law as the basis for a claim that FECA should not apply to them? The planning strategy becomes apparent if one compares the two compliance systems. The most important differences between FECA and the code is that FECA reporting and enforcement are geared to the timing of federal elections, while tax reporting and enforcement are geared to the appropriate taxable year without regard to the timing of federal elections. To argue that only the code should apply to the election activities of organizations exempt from federal income tax means that all reporting and enforcement activities will occur after the relevant federal election. To argue that FECA also applies means that reporting and enforcement will be conducted on a timetable that protect the purposes of FECA. There are other important differences as well.

Tax-exempt organizations are not subject under the code to disclosure of their contributors or their expenditures, with the exception of the disclosure requirements enacted in 2000 and applying to certain section 527 organizations that do not report to the FEC. Exempt organizations are subject to no limitations on the identity of contributors or the amount of contributions, contrary to the limitations imposed on contributors and contributions under FECA. The Service has no formal complaint process akin to that available under FECA, and no third party has standing to challenge the exempt status of an exempt organization. All tax audits of exempt organizations are confidential, while the adjudicatory actions of the FEC are conducted in public. If an entity wishes to choose a statute and an agency to oversee its electoral campaign activities, the code administered by the Service offers distinct advantages.

The consequence of these differences in the two statutes is that money can be collected and deployed by an exempt organization subject only to the code for the same activities that are regulated as to disclosure, source, and amount if collected and spent by a political committee. Failure to bring all organizations that engage in the same activities under FECA means that the FEC yet again will facilitate the creation of multiple forms of political money with no statutory basis just as it did in creating soft money. Money collected by those section 527 organizations that do not report to the FEC is, under tax law, "semi-hard" money subject only to disclosure but not subject to limitation on the identity of contributors or the amount of the contribution. Money collected by section 501(c) organizations is "softer money" that is not subject to disclosure of any kind. Perhaps one could call money collected by section 501(c)(3) public charities "the softest money" because the contributors qualify for a charitable contribution deduction./162/ The argument must be
that FECA provides no place for such money in federal elections and the FEC has no more authority to create semi-hard money or softer money than it had to create soft money in the 1970s. The code cannot be used to circumvent
FECA.

Exemption is a tax status, not a claim of privilege on either Constitutional or statutory grounds. Exemption is not a safe-harbor from FECA. To the extent that the FEC regulations on electioneering communications suggest that section 501(c)(3) status is such a safe- harbor, they are misguided and should be corrected./163/