Tuesday, December 19, 2006
David Pozen (Yale J.D. 2007) has published Remapping the Charitable Deduction, 39 Conn. L. Rev. 531 (2006). Here is the abstract:
If charity begins at home, scholarship on the charitable deduction has stayed at home. In the vast legal literature, few authors have engaged the distinction between charitable contributions that are meant to be used within the United States and charitable contributions that are meant to be used abroad. Yet these two types of contributions are treated very differently in the Code and raise very different policy issues. As Americans' giving patterns and the U.S. nonprofit sector grow increasingly international, the distinction will only become more salient.
This Article offers the first exploration of how theories of the charitable deduction apply to internationally targeted donations. In so doing, the Article aims to contribute not only to a methodological shift in nonprofit tax scholarship (a strategic remapping), but also to a reappraisal of the deduction literature (an analytic remapping): just as existing theories of the deduction can inform our understanding of foreign charity, considerations of foreign charity can shed light back on the existing theories. I argue that the standard rationales are underdetermined and undertheorized, and propose a new, integrated approach to the charitable deduction. Internationally targeted donations emerge from the analysis holding a strong claim to deductibility - often a stronger claim than domestically targeted donations hold - on almost every relevant dimension, which calls into question current regulations that privilege domestic giving. Oversight and foreign policy concerns, however, complicate the ideal of geographic neutrality and illuminate the charitable deduction's role as an instrument of statecraft. Admitting foreign charity into the debate over the deduction thus changes the debate's terms; it gives deduction theory new urgency as well as new complexity.