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We accept ahead blogged on the pros and cons of the Treasury Department’s Proposed Accommodating Addition acknowledgment regulations, advised to anticipate association of aerial tax states from accretion accommodating contributions as a way of “working around” the afresh allowable $10,000 limitation on accompaniment and bounded tax deductions.  We blogged on it afresh here.  My own appearance is that if a accommodating addition is to be bargain by the cancellation or apprehension of acknowledgment benefit, a accomplished ‘lotta accumulated accommodating contributions should be in jeopardy.  A accumulated accommodating addition is not a “detached and disinterested” alteration like a a 104 gift.   Anyway, AGs from California, Connecticut, New Jersey and New York accept acutely criticized the proposed regulations in what could be a examination of arguments fabricated in awaiting or approaching lawsuits.  As a reminder, actuality is how Treasury summarizes the proposed regulation’s effect (Proposed Reg. 1.170A-1(h)(3) (August 27, 2018):

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After reviewing the issue, and in ablaze of the longstanding attempt of the cases and tax regulations discussed above, the Treasury Department and the IRS accept that back a aborigine receives or expects to accept a accompaniment or bounded tax acclaim in acknowledgment for a acquittal or alteration to an article listed in area 170(c), the cancellation of this tax annual constitutes a quid pro quo that may avert a abounding acknowledgment beneath area 170(a). In applying area 170 and the quid pro quo doctrine, the Treasury Department and the IRS do not accept it is adapted to absolutely absolved accompaniment or bounded tax allowances from the accustomed rules that administer to added allowances accustomed by a aborigine in barter for a contribution. Thus, the Treasury Department and the IRS accept that the bulk contrarily deductible as a charitable contribution must about be bargain by the bulk of the accompaniment or bounded tax acclaim accustomed or accepted to be received, aloof as it is bargain for abounding added benefits. Accordingly, the Treasury Department and the IRS adduce regulations proposing to alter absolute regulations beneath area 170 to analyze this accepted requirement, to accommodate for a de minimis exception from the accepted rule, and to accomplish added befitting amendments.

 

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Compelling activity considerations reinforce the estimation and appliance of area 170 in this context. Disregarding the bulk of all accompaniment tax allowances accustomed or accepted to be accustomed in acknowledgment for charitable contributions would accelerate cogent acquirement losses that would attenuate and be inconsistent with the limitation on the acknowledgment for accompaniment and bounded taxes adopted by Congress in area 164(b)(6). Such an access would incentivize and accredit taxpayers to characterize payments as absolutely deductible charitable contributions for federal assets tax purposes, while appliance the aforementioned payments to amuse or annual their accompaniment or bounded tax liabilities. Disregarding the tax annual would additionally attenuate the absorbed of Congress in assuming area 170, that is, to accommodate a acknowledgment for taxpayers’ chargeless payments to condoning entities, not for transfers that aftereffect in bread-and-er returns. The Treasury Department and the IRS accept that adapted appliance of the quid pro quo doctrine to abundant accompaniment or bounded tax allowances is constant with the Code and complete tax administration.

In their 12 folio letter, anachronous yesterday, the AGs, after absolutely adage so, abuse tax activity by political payback.  But that conclusion, I’ll admit, is in the eye of the beholder.  Actuality is allotment of the AGs’ added academic argument:

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Critically, case law and the IRS’s own authoritative advice accept analogously captivated that the apprehension of a tax annual does not accord acceleration to a quid pro quo that would abate accommodating absorbed or abate the bulk of a accommodating deduction. See, e.g., Browning v. Comm’r., 109 T.C. 303, 325 (1997) (rejecting as “untenable” the altercation that a aborigine “may be advantaged to a accommodating addition acknowledgment of some bottom bulk on annual of the bread-and-er bulk of the deduction”); McLennan v. United States, 24 Cl. Ct. 102, 106 n.8 (1991) (noting that “a donation . . . for the absolute purpose of accepting a tax acknowledgment does not abate the accommodating attributes of the contribution”), aff’d 994 F.2d 839 (Fed. Cir. 1993); Transamerica Corp. v. United States, 15 Cl. Ct. 420, 465 (1988) (stating that “[e]ven area the donation is fabricated alone for the purpose of obtaining a tax benefit, the aborigine is advantaged to the deduction”); Skripak v. Comm’r., 84 T.C. 285, 319 (1985) (averring that “a taxpayer’s admiration to abstain or annihilate taxes . . . cannot be acclimated as a base for abrogating the acknowledgment for that accommodating contribution”).

 

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Simply put, absolute ascendancy analogously suggests that tax allowances do not aggregate either “consideration,” see Am. Bar Endowment, 477 U.S. at 118, or a “good[] or service[]” that gives acceleration to a quid pro quo, see Treas. Reg. § 1.170A-1(h)(2). Rather, courts and the IRS accept advised tax allowances as a simple abridgement in tax liability, not as application absorption a bargained-for exchange.  In a announcement appear on February 4, 2011, the IRS’s Office of Chief Counsel addressed the deductibility of accommodating contributions that activate SALT credits.  See IRS CCA 201105010. Drawing on the precedents cited above, and acquainted that “[t]he tax annual of a federal or accompaniment accommodating addition acknowledgment is not admired as a acknowledgment annual that negates accommodating intent, abbreviation or eliminating the deduction,” the Chief Counsel especially accustomed of accommodating tax acclaim programs, advising taxpayers that they could still abstract the abounding bulk of their accommodating donations after adding the bulk of SALT credits. Id. at 2-5. In so doing, the Chief Counsel absolutely confronted the catechism of whether “a tax annual in the anatomy of a accompaniment tax credit . . . is apparent from the annual of a accompaniment tax deduction.” Id. at 4. The Chief Counsel’s acknowledgment was clear. “[W]e see no reason,” the Chief Counsel concluded, “to analyze the bulk of a accompaniment tax deduction, and the bulk of a accompaniment tax credit, or to draw a bright-line acumen based on the bulk of the tax annual in question.” Id. at 5. The Chief Counsel accurately alone this abstract distinction. Indeed, the aftereffect of a tax credit is the aforementioned as that of a tax deduction—both abate the beneficiary’s tax accountability and incentivize accurate kinds of behavior. As the Chief Counsel recognized, therefore, a aphorism treating credits as affirmation of a quid pro quo while discounting the bulk of deductions would be incongruous. Significantly, the Tax Cloister after agreed with the Chief Counsel.

 

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In Tempel v. Commissioner, the cloister empiric that “[s]ome commentators accept appropriate a State’s admission of Accompaniment assets tax credits to taxpayers who accomplish accommodating donations . . . should be advised as a  transaction that is in allotment a auction and in allotment a gift.” 136 T.C. 341, 351 n.17 (2011). Citing IRS CCA 201105010, and acquainted that “[t]he Commissioner has eschewed this approach,” the court “discern[ed] no acumen to afflict this practice.” Ibid. “A bargain tax,” the cloister went on, should not abate the bulk of a accommodating deduction. Ibid.  With the proposed rules, however, the IRS has alone this longstanding access by creating one administration for tax credits and addition for tax deductions. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (identifying “consistency with beforehand . . . pronouncements” as a factor in evaluating bureau action). In so doing, the IRS has animated anatomy over actuality and affianced in approximate and arbitrary rulemaking. The aberration amid a tax acknowledgment and a tax acclaim is about a aberration of bulk of bread-and-er benefit; it is not a altered affectionate of benefit. But the IRS has now called to avoid the tax allowances abounding to a aborigine from deductions, while accounting for the tax allowances that aftereffect from credits. This is a animal of the IRS’s own imagination, and not an estimation of annihilation begin in Area 170 of the Tax Code.

. . . 

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Worst of all, the IRS’s access is a far cry from the approved accent it’s declared to be implementing. Area 170 “allow[s] as a acknowledgment any accommodating addition . . . fabricated within the taxable year.” I.R.C. § 170(a)(1). Nothing in Area 170 provides a base for a aphorism acute taxpayers to decrease the bulk of tax benefits—whether in the anatomy of credits or deductions— from their accommodating deductions. Indeed, the actual purpose of Area 170 is to animate accommodating giving through the accouterment of tax benefits. As a consequence, as acclaimed above, authoritative antecedent and authoritative advice accept absolutely affirmed the assumption that the apprehension of a tax annual does not accord acceleration to a quid pro quo that would abate accommodating intent or abate the bulk of a accommodating deduction. See, e.g., Browning, 109 T.C. at 325; McLennan, 24 Cl. Ct. at 106 n.8; Transamerica, 15 Cl. Ct. at 465; Skripak, 84 T.C. at 319; IRS CCA 201105010.

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Had Congress admired to alter the Code so as to about-face this longstanding precedent, it would accept done so in bright terms. It has not done so, including in the best contempo federal tax overhaul. Rather, associates allotment that check legislation again fatigued that the legislation kept the accommodating acknowledgment beneath Area 170 in place. As House Speaker Paul Ryan explained: “[T]he Tax Cuts & Jobs Act preserves the acknowledgment for accommodating giving.” House Ways & Means Committee Chairman Kevin Brady (R-Tex.) additionally stressed: “Preserving and expanding the accommodating acknowledgment will abide to animate and accolade Americans who give back to their bounded church, charity, or added annual they accept in.” Senate Finance Committee Chairman Orrin Hatch (R-Utah) additionally fatigued that the bill “preserves . . . the acknowledgment for accommodating contributions.” See also, e.g., 163 Cong. Rec. S7873 (Statement of Sen. Hoeven (RND))(“We abide the deductibility of accommodating contributions.”). The bill did accomplish some changes to Area 170, e.g., accretion the allotment of a taxpayer’s assets that can be deductible beneath Area 170 for banknote donations and preventing taxpayers from claiming amounts paid for academy able-bodied accident basement rights. Pub. L. No. 115-97, §§ 11023, 13704; H.R. Rep. 115-466 (Conference Report), at 273. These changes reinforce that Congress knew how to adapt Area 170—even to annual for bulk accustomed in barter for assertive kinds of donations. But Congress did not change Area 170 to authorize that cancellation of a accompaniment or bounded tax annual would constitute a quid pro quo adverse accommodating intent. It is not aural the IRS’s rulemaking power to accroach Congressional ascendancy and alter a tax law assumption that has been absolute for added than 100 years. See, e.g., Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986) (“It is able-bodied accustomed that back Congress revisits a statute giving acceleration to a longstanding authoritative estimation after pertinent change, the ‘congressional abortion to alter or aition the agency’s estimation is actuating affirmation that the estimation is the one advised by Congress.’”).

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