TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Saturday, January 29, 2011

The IRS Ban on Political Activity by Tax-Exempt Religious Organizations

H. Chandler Combest (J.D. 2010, Alabama) has published Note, Symbolism as Savior: A Look at the Impact of the IRS Ban on Political Activity by Tax-Exempt Religious Organizations, 61 Ala, L. Rev. 1121 (2010).  Here is part of the Introduction:

This Note argues that the religious organization political activity prohibition in the Internal Revenue Code is largely symbolic and does not prevent a meaningful number of religious organizations from expressing their political views. Although symbolism is an integral part of the prohibition, it is nonetheless constitutional, and it is a needed part of tax law in order to maintain the federal government's stance of neutrality, as well as the doctrine of separation of church and state. In order to demonstrate the symbolic nature of the prohibition, I focus principally on several ways in which the IRS's proscription is circumvented, both through other tax provisions and the workings of the legal system in general. In Part II, I focus on the constitutional framework of the political activity prohibition, specifically the Establishment Clause, the Free Exercise Clause, and their engagement with tax-exemption principles. In Part III, I turn to the prohibition itself, including the history of the provision and the current state of the law. In Part IV, I consider the somewhat varied interpretation of the prohibition by both the judicial branch and the IRS. Part V focuses on several factors that undercut the political activity prohibition, including methods through which religious organizations can voice their specific political messages while remaining tax-exempt under federal income tax law. In conclusion, I argue that although it is largely undercut by different factors and mechanisms, the political prohibition is both justified and constitutional and it ultimately serves a needed role in the intersection of federal tax and constitutional jurisprudence.

Scholarship, Tax | Permalink

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