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Advocacy Blog
Monday, June 02, 2008
IRS Says New Directive on Issue Advocacy Coming
On May 28 the DC Bar Exempt Organizations Committee held a panel discussion on election year legal issues where Internal Revenue Service (IRS) senior technical advisor Judith Kindell said two field directives for IRS agents are on the way:
- one on links between related organizations (Kindell said the IRS will not investigate links between related 501(c)(3) and 501(c)(4) organizations)
- one on issue advocacy vs. partisan activity.
According to BNA, Kindell said "issue advoacy is not just the statement, but the context of the distribution of the statement that we look to" when deciding whether a communication is partisan or not.
In its April 17 letter on 2008 enforcement the IRS acknowledged that it has encountered "a number of cases with varied fact patterns" that differ from its guidance in Rev. Rul. 2007-41."
Attorney Marcus Owens of Caplin & Drysdale also spoke, and said the IRS should come up with bright line rules defining partisan intervention in elections, since there are too many gray areas in the facts-and-circumstances test. Owens also said his firm has seen different interpretations of the test. He said the IRS appears to be broadening its standard to include "inferences derived from discussions of candidate's position on an issue...but somewhere else in the organization, another Web site or something off a Web site could carry with it a flavor of the organization's position on the same issue, and IRS could conflate those two and come to the conclusion that there was inferential intervention."
Owens said "The message is clear - it's time for a regulations project." However, Kindell said the IRS process for including an issue on its priority plan is time-consuming, requires many approvals and is a hindrance to issuing regulations.
OMB Watch filed comments on the IRS guidance priorities saying creating a bright line definition of political intervention should be their highest priority.
Posted by Kay Guinane
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