Tax Treatment of Internet Gifts

I am posting to a new thread because for some weird reason, my two attempts to reply to the original thread have been lost in the ether. Really weird as other posts have shown up. I'm assuming it might be some special characters in the cut and paste from the referenced court case. Therefore, I have stripped out all the characters in order for this to post.

The reply is based on the example of Ms. Klein, the bus monitor who was bullied by teenage boys on the school bus.

The case cited in every law school course or masters degree case on taxation when discussing Section 102 of the IRC, is the SCOTUS decision in Commissioner v. Dubenstein 363 US 78 (1960).

The court established that the common law defintion of a gift was not relevant. They said that the key criteria to be used was the intent of the person making the transfer. They said there was no "bright line" test for this. The intent of the transferor had to be determined case by case based on the objective facts. From a statutory sense a gift proceeds from a detached and disinterested generosity, Commissioner v. LoBue, 351 U.S. 243; out of affection, respect, admiration, charity or like impulses. Robertson v. United States, supra, at 714. And in this regard, the most critical consideration, as the Court was agreed in the leading case here, is the transferor's "intention. 363 U.S. 278, 286 Bogardus v. Commissioner, 302 U.S. 34, 43 . What controls is the intention with which payment, however voluntary, has been made.

They also said: Decision of the issue presented in these cases must be based ultimately on the application of the fact-finding tribunal's experience with the mainsprings of human conduct to the totality of the facts of each case. The nontechnical nature of the statutory standard, the close relationship of it to the data of practical human experience, and the multiplicity of relevant factual elements, with their various combinations, creating the necessity of ascribing the proper force to each, confirm us in our conclusion that primary weight in this area must be given to the conclusions of the trier of fact. Baker v. Texas & Pacific R. Co., 359 U.S. 227; Commissioner v. Heininger, 320 U.S. 467,

Just about every case since 1960 that has been decided in tax court, district court and the appeals courts has cited Dubenstein and/or Bogardus.

Using Ms. Klein as the example, I believe two things happened when the cellphone video went viral. There was a huge outpouring of revulsion for what the students did to her and there was an outpouring of affection and admiration for her. She had nothing to do with the website that was launched to solicit gifts to her. The people making the transfer (gift) appear to be doing it out of "affection, respect, admiration, charity or like impulses."

Sounds like a gift to me.

P.S. Ms. Klein has announced that she will not keep the entire $648,091 and counting that has been donated by over 28,000 people.

They showed up on my news server (individual.net).