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Advocacy Blog
Tuesday, February 12, 2008
Should the IRS Facts and Circumstances Test be Reevaluated after new FEC Electioneering Rule
An article in BNA Money and Politics ($$) addresses "whether the Internal Revenue Service [IRS] needs to focus so heavily on facts and circumstances as the primary test to determine if the groups have violated prohibited political activity rules" and the complexities that arise given the new Federal Election Commission (FEC) electioneering communications rule that allows nonprofits to broadcast issue ads that mention a candidate during periods before an election as long the funding of the ads are disclosed.
Engle of Arent Fox said that in the Wisconsin Right to Life decision the Supreme Court warned the FEC against taking a "free range facts and circumstances approach" to analyzing issue ads. The court told the agency to nail down a test that would more mechanically spit out the answer on whether something was or was not an electioneering communication. This prompted practitioners to ask if IRS might do the same thing. Everything we do is facts and circumstances. So I have no answers, I just have facts and circumstances," Judith Kindell, IRS senior technical adviser to the director of exempt organizations said repeatedly at the ABA session.
Posted by Amanda Adams
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