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Thursday, May 31, 2012

Leff: The Case Against For-Profit Charity

Benjamin M. Leff (American), The Case Against For-Profit Charity, 42 Seton Hall L. Rev. ___ (2012):

This article argues that the so-called “Agency Theory” provides a coherent justification for limiting the federal income tax deduction to contributions to nonprofit providers of charity and withholding it from contributions to providers of charity whose owners or managers have a right to the profits from the firm. It does so by expanding the “Agency Theory” in a novel way — recognizing that when the government provides tax subsidies to the providers of charity, it ceases to be a neutral regulator of a market transaction, and becomes a participant in that transaction. As such, the government must examine its own agency costs to determine the most efficient structure of the transaction. In the case of the tax deduction for charitable contributions, the government’s agency-cost analysis counsels in favor of providing such subsidies only to nonprofit providers of charity.

This novel expansion of the Agency Theory has implications not only for whether the law should be changed to permit true for-profit firms to receive tax-deductible contributions (it should not), but also for shaping the law respecting various types of incentive-based compensation for managers of nonprofit organizations. This area of the law has been notoriously murky, with the IRS being especially hesitant to issue guidance on what kind of compensation structures are permitted and which are prohibited. The Agency Theory, as expanded in this article, provides some guidance as to how the government should proceed.

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