Tuesday, January 09, 2018

Restoring state and local tax deductibility through self-help

Eight eminent tax law professors have coauthored an important new SSRN piece entitled "Federal Income Tax Treatment of Charitable Contributions Entitling Donor to a State Tax Credit." It's available here.

Just for the record, as all are good friends and outstanding members of the field, they are: Joe Bankman, David Gamage, Jacob Goldin, Daniel Hemel, Darien Shanske, Kirk Stark, Dennis Ventry, and Manoj Viswanathan.

The piece addresses the issue of what state governments can do to address the repeal of state and local income and property tax deductibility by individuals above the first $10,000. Plus, it addresses whether the federal government should respond, either administratively or legislatively, to such state government responses.

In particular, the question presented is whether states can tax-effectively rely on charitable contribution credits against state tax liability, and thereby permit their own taxpayers who take advantage to claim federal charitable deductions.

To illustrate the basic idea, suppose I would pay New York State (and New York City) $100,000 of income taxes if I did nothing differently in the future than I have in the past. But now suppose that I can reduce my New York State and City income tax liability, dollar-for-dollar, by making charitable contributions to designated state and local government entities. E.g., I give $90,000 in such contributions, and thereby reduce my remaining liability to $10,000 that falls within the deduction limit.

For this to offer maximum benefit, the income taxes would need to be provide 100% credits against such liability for particular donations. There are already some such provisions in existing state and local income tax law, however, as the article documents in its appendix. And these have generally been held, by case law and/or administrative rulings (with and without express precedential effect), to work for federal income tax purposes. That is, one gets the full charitable deductions contribution for the amount one paid that was 100% creditable against state and/or local income tax liability.

There are two main legal obstacles to success of this gambit under federal income tax law.* The first is allowance of the full federal charitable deduction despite any issue regarding the state tax law benefit that one garnered by reason of making the charitable contribution. By analogy, suppose I gave $100 to NPR and got a bookbag that is worth $20. Then my federal charitable deduction would be limited to $80, i.e., to the gift minus the offsetting benefit. So legal question #1 in the above scenario is whether my federal charitable deduction would be offset by the value of the state income tax saving.

The second main federal legal obstacle to success is substance over form doctrine. Am I actually, in substance as this question is analyzed for federal income tax purposes, making a charitable contribution, rather than simply relabeling my state income tax liability?

The first main point that the article makes is that current legal authority, both from cases and IRS administrative pronouncements, strongly supports what it calls the "Full Deduction Rule."  This rule holds that "the amount of the donor's charitable contribution is not reduced by the value of state tax benefits." In short, legal obstacle #1 as described above should not prevent the relabeling from working.  As a matter of formal legal analysis, the main point here is that the state and local income tax liability doesn't actually exist until one fully applies the pertinent law. So the fact that the income tax liability never arose, due to the credit, means that there was no legally cognizable benefit. Again, the article shows that this line of reasoning has repeatedly been upheld.

The second main point that the article makes is that there are good policy rationales in favor of continuing to allow the Full Deduction Rule to apply. E.g., does one draw the line at 100% credits? Should charitable deductions generally be reduced for the value of state and local charitable deductions? Must taxpayers always compute alternative state liabilities with and without the credits? Etc.  Plus, the article argues that the Full Deduction Rule serves important federalism values and is consistent with decades of federal tax policymaking. Hence, "Congress should tread carefully if it seeks to alter the Full Deduction Rule by statute."

I find these arguments convincing. But there is still the issue, not addressed by the article as it would require a much longer and largely distinct analysis, of the circumstances in which 100% (or lesser) credits against state and local income tax liability, for charitable contributions to particular state entities, would have economic substance.

Here is a preliminary thought of mine regarding one way of establishing the requisite economic substance. Key word here is preliminary: A lot of people need to weigh in on this, regarding both federal income tax law and state and local government practicalities.

Suppose a state government offers large buckets to which one can charitably designate one's charitable contributions that generate a 100% credit against the tax liability. E.g., Medicaid and Public Health; Schools; Infrastructure, etc. Suppose there were 4 or 5 buckets and that one could get a 100% credit for up to X% of one's state income tax liability by making such designated contributions, but that no more than Y% could go to any one bucket.

The state government would still determine overall annual spending in each category, which wouldn't be directly affected by taxpayers' charitable contribution designations. (NOTE - these contributions probably should be required to be paid separately and prior to the state tax itself - not by designation on the state income tax return.)

So where's the economic substance? Point #1, I get to decide where "my" dollars, as opposed to someone else's, go. Many people actually care about this, as a matter of subjective psychological fact.

But what if the designations to a given category exceed what the state wants to spend on that category? Simple. The state designates those extra $$ as notionally in a "trust fund" that it currently pledges WILL be spent on that budgetary purpose in the future. Consider the analogy to the Social Security Trust Fund. My FICA payroll taxes ostensibly "will" be spent at some point on paying Social Security benefits. Now, budget aficionados may think this doesn't really mean much. But actual voters and taxpayers, and perhaps even the U.S. Congress, actually do think it matters. So who are we to second-guess them? (Especially as they may be correct in the sense of the Trust Fund's affecting likely future political outcomes.)

Hence we get Point #2 for economic substance. My, say, Medicaid-designated contributions WILL, the state now pledges, be spent on Medicaid or other public health either this year in the future. A trust fund pre-commits them to be spent in this way. Sure, the state could change the law next year and take back the promise without recourse on the donor's part. But, just as in the case of the Social Security Trust Fund, the donor gets the benefit of the political force, if any, that the designation might have in the future. Plus, the state legislators are getting what they might deem valuable information about taxpayer sentiment.

Do others agree with the economic substance analysis that I offer here? Are there other features that they'd deem important? Can states make this workable for themselves and their taxpayers, without undue inconvenience on either side? I am hoping that others will address these issues as well.
* Extra challenges may arise making this practically workable in the case of (a) local as well as state income tax liability, and (b) property taxes that often are paid to a smallish local government unit.


Eric Rasmusen said...

I just posted Getting Around the State and Local Tax Deduction Limit (January 9, 2018). Available at SSRN: https://ssrn.com/abstract==3099296.

I talk about this blog post a little. I think it won't quite work, because the recipient is still the one providing the thing of value. If the State set up a separate legal person with autonomy over Infrastructure or Medicaid, on the other hand, the idea might well work.

Eric Rasmusen said...

Oops--- https://ssrn.com/abstract=3099296.


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Daniel Shaviro said...

Eric, thanks for your quick SSRN piece. However one comes out (or however things shake out), the topic needs continued dialogue, to which you are contributing.

Victor Thuronyi said...

Let's get real. There is no way that a rule like this is going to persist; it will be shut down by Congress. It would be a mess and should be shut down. The rule is needed only because SALT is so severely cut back. That policy should be reversed. So my assumption is that SALT will come back, and the self-help approach will not be needed. But when this happens I don't know: 2019? 2021? In the interim, the self-help approach should be done, but it should be seen as a messy interim measure, to some extent designed to force Congress to act. Therefore, I am not as concerned about the problem of excessive contributions to particular programs. These might happen, but it would not be the end of the world. Also, I would not give all the money away to taxpayers/donors. It would be quite appropriate for the State to take a cut, for example by offering a 95% credit, not 100% (this would also help with form vs. substance problem). It would also help with the politics of this; otherwise, state legislators would be accused of helping the wealthy get a federal tax benefit with no benefit to the state or other taxpayers who do not itemize. Providing a partial credit shares the benefits with all taxpayers by helping the state budget.

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