For close to 20 yeasrs, my church has had an online mailing list for the members, where they post all sorts of stuff, sort of the online version of the coffee hour after church. At this time of year, they post announcements of political events. Due to the demographics of the church (Unitarian church in a college town), the announcements are overwhelmingly about Democratic events. Some of the members are fretting that allowing political announcements puts our tax exemption at risk.
This seems totally implausible to me becuase
a) the traffic on the list is clearly from individuals, not the church (there's a separate list for church announcements)
b) all political announcements are equally welcome (I run the list, I know who posts what)
c) the IRS has shown negligible interest in the topic.
Does anyone know of actual cases where the IRS has challenged a church's exempt status due to political speech? It is my impression that in many churches, the clergy tells the congregation from the pulpit who to vote for, and nobody cares.
Unless determination is sought voluntarily, churches do not seek recognition from IRS that they are described in 501(c)(3). For constitutional reasons, the US Tax Code doesn't describe churches. Churches describe themselves as churches instead. Instead, IRS may inquire into the tax status of a church if facts and circumstances lead the government to believe that the church may not qualify for exemption. IRS must receive approval for an inquiry or examination from a specific high-level official at Treasury. See Publication 1828 for minor details.
That being said, tax law prohibiting the participation or intervention in any political campaign by an organization described in 501(c)(3) also applies to churches.
As it happens, yes, IRS does state a position and gives examples in a revenue ruling, Rev.Rul. 2007-41, published in IRB 2007-25.
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See the section on Web pages, which is sort of applicable to your mailing list.
The Internet has become a widely used communications tool. Section 501(c)(3) organizations use their own web sites to disseminate statements and information. They also routinely link their web sites to web sites maintained by other organizations as a way of providing additional information that the organizations believe is useful or relevant to the public.
A web site is a form of communication. If an organization posts something on its web site that favors or opposes a candidate for public office, the organization will be treated the same as if it distributed printed material, oral statements or broadcasts that favored or opposed a candidate.
An organization has control over whether it establishes a link to another site. When an organization establishes a link to another web site, the organization is responsible for the consequences of establishing and maintaining that link, even if the organization does not have control over the content of the linked site. Because the linked content may change over time, an organization may reduce the risk of political campaign intervention by monitoring the linked content and adjusting the links accordingly.
Links to candidate-related material, by themselves, do not necessarily constitute political campaign intervention. All the facts and circumstances must be taken into account when assessing whether a link produces that result. The facts and circumstances to be considered include, but are not limited to, the context for the link on the organization's web site, whether all candidates are represented, any exempt purpose served by offering the link, and the directness of the links between the organization's web site and the web page that contains material favoring or opposing a candidate for public office.
So don't post political announcements on the church's mailing list.
The solution couldn't be any simpler: Declare yourself the list owner and that this is not a mailing list of your Unitarian Church. I'm guessing that all the resources are yours, the mailing list server and connectivity. Do not take a charitable deduction for providing these resources, which I assume are negligible anyway.
Then, your list's subscribers are exercising freedom to publish and the church isn't running afoul of tax code violations.
I'm glad you took the time to post here, as it sounds like you had already reached your own conclusion. Fortunately your fellow worshippers were asking good questions.
I'm curious where you got your impression above, having attended your own church for 20+ years. While not a regular church-goer, I read and watch a variety of media sources, and have not seen anything that backs up your impression.
I only bring this up because you are basically saying there is wide-spread disregard for the tax code in the religious community and "nobody cares". (Your own fellow worshippers apparently do care).
Try a Google search for phrases like "minister endorses Romney" and you'll find plenty of stories about political endorsements from the pulpit. The only case I've been able to find where the IRS took action was an egregious one where the church bought billboards attacking a candidate. I've been running my church's lists for close to 20 years, and only now has someone asked about the tax angle, so that doesn't strike me as a lot of interest.
The suggestion that I simply state that they're my lists rather than the church's seems like a good one. The person correctly guessed that I run them on my equipment at my own expense, with no payment explicit or implicit from the church.
I don't _at all_ agree that the IRS language about web sites and links is comparable to the situation described by the OP.
As the OP said, individual members of the church are postings the political messages, not the church. That's entirely different from the web site _choosing_ what to put on its web site and _curating_ that content.
As the OP said, a "coffee hour after church" is a very good analogy for what the mailing list is, and a church would never lose its tax-exempt status because members stood around talking politics during coffee hour.
Even if the church provides the mailing list, the logic that this somehow implies endorsement of the speech is nonsense. The church also provides the room in which coffee hour occurs and probably the coffee as well, and yet that does not imply endorsement of political speech made by church members during coffee hour.
A far more on-point legal reference is the CDA's Section 230, which exempts web sites from liability for content posted by third parties on their site, as long as that content is not curated by the operator of the web site (and sometimes even when it is, if the curation is sufficiently limited in scope). As long as the church isn't controlling what speech is posted to the list, it bears no responsibility for the content and does not endorse it, and therefore I don't think it'd lose its tax-exempt status over it.
There may in fact be IRS regulations which make this problematic, but the ones quoted above aren't them.
Care to quote exactly which part of 47 USC 230 you think applies? Because I don't think you can. The statute immunizes against civil liability; IRS revocation of a tax exemption hardly qualifies.
"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
Later on in the statute, specifically paragraph (e), it says that the provisions of that statute won't have any effect on criminal, intellectual property or communication privacy laws. It could have but doesn't say that it won't have any effect on tax laws.
Under normal rules of statutory construction, that would mean the statute would, under proper circumstances, have an effect on tax laws. Of course, I haven't looked to see if there are any cases on this issue, but that's the way it appears to me.
Jonathan, you didn't quote anything I wrote. If you had, the reader could see for himself that at no point did I state that the language was "comparable". Instead, I stated about Rev.Rul. 2007-41,
See the section on Web pages, which is sort of applicable to your mailing list.
I wrote "sort of applicable", an equivocation, because it wasn't exactly comparable, merely the only guidance I found on Internet communication.
In any event, there was no church tax issue in the first place because the OP, and not the church, provided computer resources and connectivity for the mailing list. I advised him to declare himself the mailing list owner, and not the church, as a concern had been expressed, and not to take a charitable deduction for the resources he provided. The OP accepted my advice as a reasonable solution.
Please don't say "never". All politicking is people talking. The person talking politics could be the president of the congregation, and he could be recruiting volunteers or campaign donations on behalf of a political candidate, and that could easily be an issue in an inquiry or examination into the church's tax status. Any issue raised costs the church time and money to defend against.
If a church organized a phone bank to canvass for like-minded registered voters to vote for a particular candidate and to offer rides to the polling place, the politicking would be by congregants and not the church leadership. This is an example of prohibited campaign intervention, even though it's just people talking politics, because church resources were used to organize that phone bank.
Some speech leads to action, like volunteer recruitment and contributions. The political prohibition is a bit broader than endorsement, but activities that favor or oppose a candidate or groups of candidates could constitution prohibited participation or intervention. Non-partisan voter registration or voter education activities aren't prohibited. I've never heard of such a thing (perhaps Unitarians would allow this), but allowing partisans for opposing candidates to use church resources to recruit volunteers and solicit funds could be prohibited.
Given that the mailing list isn't used for church business, there's no reason for the church to provide a mailing list for political speech among its congregants. As there are better alternatives available, such as a congregant setting up the mailing list himself, perfectly constitutional political speech among church congregants hasn't been stifled.
In the Revenue Ruling in question, IRS guidance gives a hypothetical of speech prohibited to the leaders of a 501(c)(3) of a university president endorsing a candidate in an alumni newsletter. The newsletter is an official publication of the university, so it's prohibited campaign intervention, even if the university president were to pay a pro-rated share of the distribution cost applicable to the portion devoted to the endorsement.
Sure. It's different when congregants who aren't leaders of the church talk politics. No, IRS didn't offer guidance, but if there's any possibility that IRS could raise the issue of a church mailing list with political discussion is an official church publication, why not avoid having to deal with the issue by encouraging a congregant to provide the mailing list instead?
A church wins nothing in a confrontation with IRS on this issue. There's no benefit to the church, as opposed to a congregant, offering this mailing list, and it can only lose by having to defend the issue, even if IRS ultimately drops it.
You're comparing liability for obscenity to prohibited political activity by churches? The church tax issue is providing resources for activities prohibited to churches. What are you going to argue, common carrier law protects churches from losing tax status?
Well, there may not be any others. I think if IRS wished to offer additional guidance on political activities prohibited to 501(c)(3)s including churches, it would write a revenue ruling to replace this one.
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