Contributions in Exchange for State or Local Tax Credits, 43563-43571 [2018-18377]

Download as PDF Federal Register / Vol. 83, No. 166 / Monday, August 27, 2018 / Proposed Rules you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC. (h) Additional Information The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2017–0011, dated January 25, 2017. You may view the EASA AD on the internet at http://www.regulations.gov in the AD Docket. (i) Subject Joint Aircraft Service Component (JASC) Code: 6510 Tail Rotor Driveshaft. Submissions may be hand-delivered Monday through Friday between the hours of 8:00 a.m. and 4:00 p.m. to CC:PA:LPD:PR (REG–112176–18), Courier’s Desk, 1111 Constitution Avenue NW, Washington, DC 20224, or sent electronically, via the Federal eRulemaking Portal at www.regulations.gov (indicate IRS and REG–112176–18). The public hearing will be held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue NW, Washington, DC 20224. FOR FURTHER INFORMATION CONTACT: Issued in Fort Worth, Texas, on August 10, 2018. Lance T. Gant, Director, Compliance & Airworthiness Division, Aircraft Certification Service. [FR Doc. 2018–18472 Filed 8–24–18; 8:45 am] Concerning the proposed regulations, Merrill D. Feldstein and Mon Lam at (202) 317–4059; concerning submission of comments and requests for a public hearing, Regina Johnson at (202) 317– 6901 (not toll-free numbers). SUPPLEMENTARY INFORMATION: BILLING CODE 4910–13–P Background DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG–112176–18] RIN 1545–BO89 Contributions in Exchange for State or Local Tax Credits Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking and notification of public hearing. amozie on DSK3GDR082PROD with PROPOSALS1 AGENCY: SUMMARY: This document contains proposed amendments to regulations under section 170 of the Internal Revenue Code (Code). The proposed amendments provide rules governing the availability of charitable contribution deductions under section 170 when a taxpayer receives or expects to receive a corresponding state or local tax credit. This document also proposes amendments to the regulations under section 642(c) to apply similar rules to payments made by a trust or decedent’s estate. This document provides notification of a public hearing on these proposed regulations. DATES: Written and electronic comments must be received by October 11, 2018. Requests to speak and outlines of topics to be discussed at the public hearing scheduled for November 5, 2018, must be received by October 11, 2018. ADDRESSES: Send submissions to Internal Revenue Service, CC:PA:LPD:PR (REG–112176–18), Room 5203, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. VerDate Sep<11>2014 17:27 Aug 24, 2018 Jkt 244001 Section 170(a)(1) generally allows an itemized deduction for any ‘‘charitable contribution’’ paid within the taxable year. Section 170(c) defines ‘‘charitable contribution’’ as a ‘‘contribution or gift to or for the use of’’ any entity listed in that subsection. Section 170(c)(1) includes a contribution or gift to or for the use of a State, a possession of the United States, or any political subdivision of the foregoing, but only if the contribution or gift is made exclusively for public purposes. Section 170(c)(2) includes, in general, a contribution or gift to or for the use of certain corporations, trusts, or community chests, funds, or foundations, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or to foster national or international amateur sports competition, or for the prevention of cruelty to children or animals. Section 164 generally allows an itemized deduction for the payment of certain taxes, including state and local, and foreign, real property taxes; state and local personal property taxes; and state and local, and foreign, income, war profits, and excess profits taxes. Section 164(b)(6), as added by section 11042 of ‘‘An Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018’’ (the Act), Public Law 115–97, limits an individual’s deduction for the aggregate amount of state and local taxes paid during the calendar year to $10,000 ($5,000 in the case of a married individual filing a separate return). This new limitation applies to taxable years beginning after PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 43563 December 31, 2017, and before January 1, 2026. I. The Charitable Contribution Deduction In 1986, the Supreme Court interpreted the phrase ‘‘charitable contribution’’ in section 170. See United States v. American Bar Endowment, 477 U.S. 105, 116–118 (1986). The Court held that the ‘‘sine qua non of a charitable contribution is a transfer of money or property without adequate consideration’’—that is, without the expectation of a quid pro quo. Id. at 118. A ‘‘payment of money generally cannot constitute a charitable contribution if the contributor expects a substantial benefit in return.’’ Id. at 116. The Court recognized that some payments may have a ‘‘dual character’’—part charitable contribution and part quid pro quo— whereby the taxpayer receives some ‘‘nominal benefit’’ of lesser value than the payment. Id. at 117. In such cases, the Court reasoned, ‘‘it would not serve the purposes of § 170 to deny a deduction altogether.’’ Id. Instead, the Court held, the charitable contribution deduction is allowed, but only to the extent the amount donated or the fair market value of the property transferred by the taxpayer exceeds the fair market value of the benefit received in return, and only if the excess amount was transferred with the intent of making a gift. Id. For the benefit received in return to reduce the allowable charitable contribution deduction under section 170, the benefits received, or expected to be received, by a donor need only be greater than those benefits that inure to the general public from transfers for charitable purposes. See, e.g., Singer Co. v. United States, 449 F.2d 413, 422–423 (Ct. Cl. 1971); American Bar Endowment, 477 U.S. at 116–17 (citing Singer); Hernandez v. Commissioner, 490 U.S. 680 (1989). In addition, the benefits received need not come directly from the donee to reduce the allowable deduction, nor do they need to be specifically quantifiable at the time of transfer. See, e.g., Singer, 449 F.2d at 422. The Treasury Department and the IRS have incorporated many of these principles into regulations under section 170. Section 1.170A–1(h)(1) of the Income Tax Regulations provides, for example, that no part of a payment that a taxpayer makes to or for the use of an organization described in section 170(c) that is in consideration for (as defined in § 1.170A–13(f)(6)) goods or services (as defined in § 1.170A– 13(f)(5)) is a contribution or gift within the meaning of section 170(c) unless the taxpayer (i) intends to make a payment E:\FR\FM\27AUP1.SGM 27AUP1 43564 Federal Register / Vol. 83, No. 166 / Monday, August 27, 2018 / Proposed Rules amozie on DSK3GDR082PROD with PROPOSALS1 in an amount that exceeds the fair market value of the goods or services; and (ii) makes a payment in an amount that exceeds the fair market value of the goods or services. Section 1.170A– 13(f)(5) defines goods or services to include cash, property, services, benefits, and privileges, and § 1.170A– 13(f)(6) provides that a donee provides goods or services in consideration for a taxpayer’s payment if, at the time the taxpayer makes the payment to the donee organization, the taxpayer receives or expects to receive goods or services in exchange for that payment. II. State and Local Tax Credit Programs In recent years, it has become increasingly common for states and localities to provide state or local tax credits in return for contributions by taxpayers to or for the use of certain entities listed in section 170(c). As the use of these tax credit programs by states and localities became more common, the IRS Office of Chief Counsel (IRS Chief Counsel), in multiple Chief Counsel Advice memoranda (CCAs), considered whether the receipt of state tax credits under these programs were quid pro quo benefits that would affect the amount of taxpayers’ charitable contribution deductions under section 170(a). Although CCAs are released to the public for information purposes, it should be noted that CCAs are not official rulings or positions of the IRS, are not ordinarily reviewed by the Treasury Department, and are not precedential. In CCAs issued in 2002 and 2004, IRS Chief Counsel reviewed programs involving the issuance of state tax credits in return for the transfer of conservation easements and for payments to certain child care organizations. See CCA 200238041 (July 24, 2002); CCA 200435001 (July 28, 2004). In these CCAs, IRS Chief Counsel recognized that these programs raised complex questions and recommended that the tax credit issue be addressed through official published guidance. In 2010, another CCA explained that published guidance on the issue was not contemplated at that time, but it offered further advice. See CCA 201105010 (Oct. 27, 2010) (the 2010 CCA). This 2010 CCA observed that a payment to a state agency or charitable organization in return for a tax credit might be characterized as either a charitable contribution deductible under section 170 or a payment of state tax possibly deductible under section 164. The 2010 CCA advised that taxpayers may take a deduction under section 170 for the full amount of a contribution made in return VerDate Sep<11>2014 17:27 Aug 24, 2018 Jkt 244001 for a state tax credit, without subtracting the value of the credit received in return. The analysis in the 2010 CCA assumed that after the taxpayer applied the state or local tax credit to reduce the taxpayer’s state or local tax liability, the taxpayer would receive a smaller deduction for state and local taxes under section 164. The 2010 CCA cautioned, however, that ‘‘there may be unusual circumstances in which it would be appropriate to recharacterize a payment of cash or property that was, in form, a charitable contribution as, in substance, a satisfaction of tax liability.’’ In addition to the CCAs, IRS Chief Counsel has taken the position in the U.S. Tax Court that the amount of a state or local tax credit that reduces a tax liability is not an accession to wealth under section 61 or an amount realized for purposes of section 1001, and the Tax Court has accepted this view. See, e.g., Maines v. Commissioner, 144 T.C. 123, 134 (2015) (holding that the nonrefundable portion of a state income tax credit, the amount of which was based on previously-paid property taxes, reduced the current year’s tax liability and is not taxable or treated as an item of income); Tempel v. Commissioner, 136 T.C. 341, 351–354 (2011) (holding that state income tax credits received by a donor for the transfer of a conservation easement and sold by the donor were capital assets, but that the donor had no adjusted basis in the credits), aff’d sub nom. Esgar Corp. v. Commissioner, 744 F.3d 648 (10th Cir. 2014). However, the application of sections 61 and 1001 to state or local tax credits presents different issues than the application of section 170, and none of these cases addressed whether a taxpayer’s expectation or receipt of a state or local tax credit may reduce a taxpayer’s charitable contribution deduction under section 170. Nor has the Treasury Department or the IRS ever addressed this question in published guidance. income tax liability because any increased deduction under section 170 would be offset by a decreased deduction under section 164. However, as a result of the new limit on the deductibility of state and local taxes under section 164(b)(6) (as added by the Act), treating a transfer pursuant to a state or local tax credit program as a charitable contribution for federal income tax purposes may reduce a taxpayer’s federal income tax liability. When a charitable contribution is made in return for a state or local tax credit and the taxpayer has pre-credit state and local tax liabilities in excess of the $10,000 limitation in section 164(b)(6), a charitable contribution deduction under section 170 would no longer be offset by a reduction in the taxpayer’s state and local tax deduction under section 164. Thus, as a consequence, state and local tax credit programs now give taxpayers a potential means to circumvent the $10,000 limitation in section 164(b)(6) by substituting an increased charitable contribution deduction for a disallowed state and local tax deduction. State legislatures are also now considering or have adopted proposals to enact new state and local tax credit programs with the aim of enabling taxpayers to characterize their transfers as fully deductible charitable contributions for federal income tax purposes, while using the same transfers to satisfy or offset their state or local tax liabilities. In light of the tax consequences of section 164(b)(6) and the resulting increased interest in preexisting and new state tax credit programs, the Treasury Department and the IRS determined that it was appropriate to review the question of whether amounts paid or property transferred in exchange for state or local tax credits are fully deductible as charitable contributions under section 170. III. New Limitation in Section 164 At the time the 2010 CCA was issued, section 164 generally allowed an itemized deduction—unlimited in amount—for the payment of state and local taxes. Accordingly, the question of how to characterize transfers pursuant to state tax credit programs had little practical consequence from a federal income tax perspective because, unless the taxpayer was subject to the alternative minimum tax (AMT) under section 55, a deduction was likely to be available under either section 164 or section 170. Permitting a charitable contribution deduction for a transfer made in exchange for a state or local tax credit generally had no effect on federal IV. Notice 2018–54 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 Pursuant to this review, in Notice 2018–54, 2018–24 I.R.B. 750, the Treasury Department and the IRS announced on June 11, 2018, their intention to propose regulations addressing the federal income tax treatment of payments made by taxpayers for which the taxpayers receive a credit against their state and local taxes. The notice stated that federal tax law controls the proper characterization of payments for federal income tax purposes and that proposed regulations would assist taxpayers in understanding the relationship between the federal charitable contribution deduction and the new limitation on the E:\FR\FM\27AUP1.SGM 27AUP1 Federal Register / Vol. 83, No. 166 / Monday, August 27, 2018 / Proposed Rules amozie on DSK3GDR082PROD with PROPOSALS1 deduction for state and local tax payments. Although Notice 2018–54 was issued in response to state legislation proposed after the enactment of the limitation on state and local tax deductions under section 164(b)(6), the rules in these proposed regulations are based on longstanding federal tax law principles, which apply equally to taxpayers regardless of whether they are participating in a new state and local tax credit program or a preexisting one. Accordingly, the proposed regulations, and the analysis underlying the proposed regulations, are intended to apply to transfers pursuant to state and local tax credit programs established under the recent state legislation as well as to transfers pursuant to state and local tax credit programs that were in existence before the enactment of section 164(b)(6). V. Proposed Regulations After reviewing the issue, and in light of the longstanding principles of the cases and tax regulations discussed above, the Treasury Department and the IRS believe that when a taxpayer receives or expects to receive a state or local tax credit in return for a payment or transfer to an entity listed in section 170(c), the receipt of this tax benefit constitutes a quid pro quo that may preclude a full deduction under section 170(a). In applying section 170 and the quid pro quo doctrine, the Treasury Department and the IRS do not believe it is appropriate to categorically exempt state or local tax benefits from the normal rules that apply to other benefits received by a taxpayer in exchange for a contribution. Thus, the Treasury Department and the IRS believe that the amount otherwise deductible as a charitable contribution must generally be reduced by the amount of the state or local tax credit received or expected to be received, just as it is reduced for many other benefits. Accordingly, the Treasury Department and the IRS propose regulations proposing to amend existing regulations under section 170 to clarify this general requirement, to provide for a de minimis exception from the general rule, and to make other conforming amendments. Compelling policy considerations reinforce the interpretation and application of section 170 in this context. Disregarding the value of all state tax benefits received or expected to be received in return for charitable contributions would precipitate significant revenue losses that would undermine and be inconsistent with the limitation on the deduction for state and local taxes adopted by Congress in VerDate Sep<11>2014 17:27 Aug 24, 2018 Jkt 244001 section 164(b)(6).1 Such an approach would incentivize and enable taxpayers to characterize payments as fully deductible charitable contributions for federal income tax purposes, while using the same payments to satisfy or offset their state or local tax liabilities. Disregarding the tax benefit would also undermine the intent of Congress in enacting section 170, that is, to provide a deduction for taxpayers’ gratuitous payments to qualifying entities, not for transfers that result in economic returns. The Treasury Department and the IRS believe that appropriate application of the quid pro quo doctrine to substantial state or local tax benefits is consistent with the Code and sound tax administration. Explanation of Provisions The proposed regulations generally provide that if a taxpayer makes a payment or transfers property to or for the use of an entity listed in section 170(c), and the taxpayer receives or expects to receive a state or local tax credit in return for such payment, the tax credit constitutes a return benefit, or quid pro quo, to the taxpayer and reduces the charitable contribution deduction. In addition to credits, the proposed regulations also address state or local tax deductions claimed in connection with a taxpayer’s payment or transfer. Although deductions could be considered quid pro quo benefits in the same manner as credits, the Treasury Department and the IRS believe that sound policy considerations as well as considerations of efficient tax administration warrant making an exception to quid pro quo principles in the case of dollar-for-dollar state or local tax deductions. Because the benefit of a dollar-for-dollar deduction is limited to the taxpayer’s state and local marginal rate, the risk of deductions being used to circumvent section 164(b)(6) is comparatively low. In addition, if state and local tax deductions for charitable contributions were treated as quid pro quo benefits, it would make the accurate 1 The Joint Committee on Taxation estimated that the limitation on state and local tax deductions along with certain other reforms of itemized deductions would raise $668 billion over ten years. A substantial amount of this revenue would be lost if state tax benefits received in exchange for charitable contributions were ignored in determining the charitable contribution deduction. This estimate is not a revenue estimate of the proposed regulations, in part because it includes other reforms of itemized deductions but does not reflect certain other provisions of the Act. See Joint Committee on Taxation, ‘‘Estimated Budget Effects of the Conference Agreement for H.R. 1, The ‘Tax Cuts and Jobs Act,’ ’’ JCX–67–17, December 18, 2017 available at https://www.jct.gov/publications. html?func=startdown&id=5053. PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 43565 calculation of federal taxes and state and local taxes difficult for both taxpayers and the IRS. For example, the value of a deduction could vary based on the taxpayer’s marginal or effective state and local tax rates, making for more complex computations and adding to administrative and taxpayer burden. The proposed regulations thus allow taxpayers to disregard dollar-for-dollar state or local tax deductions. However, the proposed regulations state that, if the taxpayer receives or expects to receive a state or local tax deduction that exceeds the amount of the taxpayer’s payment or the fair market value of the property transferred, the taxpayer’s charitable contribution deduction must be reduced. The Treasury Department and the IRS request comments on how to determine the amount of this reduction. To provide consistent treatment for state or local tax deductions and state or local tax credits that provide a benefit that is generally equivalent to a deduction, the proposed regulations include a de minimis exception under which a taxpayer may disregard a state or local tax credit if such credit does not exceed 15 percent of the taxpayer’s payment or 15 percent of the fair market value of the property transferred by the taxpayer. The de minimis exception reflects that the combined value of a state and local tax deduction, that is the combined top marginal state and local tax rate, currently does not exceed 15 percent. Accordingly, under the proposed regulations, a state or local tax credit that does not exceed 15 percent does not reduce the taxpayer’s federal deduction for a charitable contribution. The Treasury Department and the IRS request comments on this proposed exception. In drafting the proposed regulations, the Treasury Department and the IRS also considered whether a taxpayer may decline the receipt or anticipated receipt of a state or local tax credit by taking some affirmative action at the time of the taxpayer’s payment or transfer. See Rev. Rul. 67–246, 1967–2 C.B. 104 (allowing a full charitable contribution deduction if the taxpayer does not accept or keep any indicia of a return benefit). Because procedures for declining the state or local tax credit would depend on the procedures of each state and locality in administering the tax credits, the Treasury Department and the IRS request comments regarding a rule that would allow taxpayers to decline state or local tax credits and receive full deductions for charitable contributions under section 170. Trusts and decedents’ estates may claim an income tax deduction for E:\FR\FM\27AUP1.SGM 27AUP1 43566 Federal Register / Vol. 83, No. 166 / Monday, August 27, 2018 / Proposed Rules charitable contributions under section 642(c). For the same reasons provided above, the proposed regulations amend § 1.642(c)–3 to provide that the proposed rules under § 1.170A–1(h)(3) apply to payments made by a trust or decedent’s estate in determining its charitable contribution deduction under section 642(c). Proposed Applicability Date The amendments to these regulations are proposed to apply to contributions after August 27, 2018. amozie on DSK3GDR082PROD with PROPOSALS1 Special Analyses Executive Orders 12866 and 13563 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. These proposed regulations have been designated as subject to review under Executive Order 12866 pursuant to the Memorandum of Agreement (April 11, 2018) between the Treasury Department and the Office of Management and Budget (OMB) regarding review of tax regulations. OMB has determined that the proposed regulations are subject to review under section 1(b) of the Memorandum of Agreement. These proposed regulations have been reviewed by OMB. These proposed regulations are anticipated to be regulatory actions under E.O. 13771. The analysis below can provide further detail on this designation. I. Need for Regulations These proposed regulations provide guidance on the deductibility of charitable contributions when a taxpayer receives or expects to receive a corresponding state or local tax credit. These proposed regulations are intended to clarify the relationship between the federal charitable contribution deduction and the recently-enacted statutory limitation on deductions for state and local taxes paid (the ‘‘SALT cap’’) and to make the federal tax system more neutral with respect to taxpayers’ decisions regarding donations. Compelling policy considerations reinforce the interpretation and application of section 170 in this context. Disregarding the value of all state tax benefits received or expected to be received in return for VerDate Sep<11>2014 17:27 Aug 24, 2018 Jkt 244001 charitable contributions would precipitate revenue losses that would undermine and be inconsistent with the limitation on the deduction for state and local taxes adopted by Congress in section 164(b)(6). Pursuant to section 6(a)(3)(B) of Executive Order 12866, the following qualitative analysis provides further details regarding the anticipated impact of the proposed regulations. After identifying a baseline in Part II, this analysis provides illustrative scenarios in Part III. Part III.A describes the tax effects of the contributions prior to enactment of the SALT cap in the Act. Part III.B provides examples comparing the enactment of the SALT cap but absent the proposed rule (the baseline) to the proposed rule. Finally, Part IV provides a qualitative assessment of the potential costs and benefits of the proposed rule compared to the baseline. II. Baseline Prior to this proposed rule, there was no authoritative regulatory guidance on the treatment of state or local tax credits arising from charitable contributions to entities listed in section 170(c), and there was no guidance aside from Notice 2018–54 addressing the interaction between section 170 and the newly enacted SALT cap. As a result, there was a degree of taxpayer uncertainty as to whether state and local tax credits are a return benefit that reduces a taxpayer’s charitable contribution deduction. For informational and analytical purposes, however, this analysis assumes as a baseline that state and local tax credits are generally not treated as a return benefit or consideration and therefore do not reduce the taxpayer’s charitable contribution deduction under section 170(a). III. Illustrative Scenarios For the following illustrative scenarios, assume the following facts: Charitable organizations A and B are entities listed in section 170(c) and provide similar public goods. Contributions to charity A are eligible for a dollar-for-dollar state tax credit. Contributions to charity B are ineligible for this credit but are deductible from state taxable income. A taxpayer itemizes deductions, and these itemized deductions in aggregate are at least $1,000 more than the standard deduction. The taxpayer has the choice to contribute $1,000 to charity A, and this $1,000 contribution generates a state tax credit of $1,000,2 that is, the tax 2 Note that this analysis only addresses state tax credits offering a 100% benefit. The results may differ for credits offering a lower benefit, but the PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 credit is dollar-for-dollar but does not otherwise figure into the calculation of the taxpayer’s state tax liability. The taxpayer has more than $1,000 of state tax liability, so that the taxpayer’s state tax liability is reduced by the entire $1,000 of the state tax credit. Finally, if the taxpayer makes the $1,000 contribution that generates a state tax credit of $1,000, the taxpayer reduces by $1,000 the withholdings or other payments of state taxes during the taxable year in question. The state taxes paid by the taxpayer are therefore reduced by the full amount of the state tax credit in the same taxable year as the contribution is made.3 Further assume the taxpayer is in the 24 percent federal tax bracket, itemizes federal tax deductions, and has a state tax rate of 5 percent. If the taxpayer is subject to the AMT, assume an AMT marginal tax rate of 26 percent. The Act and proposed regulations alter the incentives taxpayers face about whether and how much to give to organizations that receive charitable contributions as well as to which organizations. This is illustrated in the following scenarios, which are also summarized in Table 1 (below). A. Prior Law: Section 170 Charitable Contributions Prior to the Act The tax effects of contributions prior to enactment of the Act are illustrated in the columns labeled ‘‘Prior Law’’ in Table 1. 1. Taxpayer Not Subject to AMT Prior to enactment of the Act, if the taxpayer made a $1,000 contribution to charity A that generated a state tax credit of $1,000, the deduction for charitable contributions under section 170(a) increased by $1,000, and the deduction for state and local taxes paid under section 164 decreased by $1,000. The taxpayer’s itemized deductions, taxable income, and federal tax liability were unchanged from what they would have been in the absence of the contribution.4 The taxpayer’s state tax liability decreased by $1,000 because of the state tax credit. The combined federal and state tax benefits of the comparative results of the below illustrative examples would be similar. 3 The results of the examples are generally unchanged if the taxpayer instead receives the credit as a refund of state taxes paid that were deducted from federal taxable income, as such refund would be includible in federal taxable income in the following year. 4 This assumes the taxpayer was not subject to limitations such as the overall limitation on itemized deductions under section 68 or subject to a percentage limitation for the deduction under section 170, an assumption that is maintained throughout the succeeding discussion. E:\FR\FM\27AUP1.SGM 27AUP1 Federal Register / Vol. 83, No. 166 / Monday, August 27, 2018 / Proposed Rules $1,000 contribution were therefore $1,000, and the cost to the taxpayer and to the federal government of making the contribution was $0. This is shown in column A under Prior Law for Example 1 in Table 1 and replicated in the same column for Example 2. amozie on DSK3GDR082PROD with PROPOSALS1 2. Taxpayer Subject to AMT If the taxpayer were subject to the AMT under section 55, however, there was a net benefit to the taxpayer from contributions to charity A, which provided state tax credits. State and local taxes paid are not deductible expenses in determining taxable income under the AMT, but charitable contributions are deductible expenses in determining taxable income under the AMT. If the taxpayer contributed $1,000, taxable income under the AMT was reduced by $1,000 due to the charitable contribution deduction under section 170, but there was no corresponding reduction in the deduction for state and local taxes. Under an AMT marginal tax rate of 26 percent, the federal tax benefit of this $1,000 contribution would be $260. Because of the dollar-for-dollar state tax credit, the taxpayer received a combined federal and state tax benefit of $1,260 for a $1,000 contribution, a net benefit of $260. This is shown in column A under Prior Law for Example 3 in Table 1. 3. Comparison of Contributions to Different Organizations Under Prior Law In combination, state and federal tax laws generally provide a greater incentive to contribute to organizations eligible for state tax credits (charity A) than to other organizations (charity B). The effect of a contribution to charity A are described above. Prior to enactment of the Act, for a taxpayer not subject to the AMT, a $1,000 contribution to charity B yielded a smaller combined federal and state tax benefit than to charity A. The state tax benefit was $50 ($1,000 times the 5 percent state tax rate). The taxpayer’s itemized deductions at the federal level increased by $950 (the $1,000 charitable contribution deduction less than $50 reduction in state taxes paid). The federal tax benefit of this increase was $228 ($950 times the 24 percent federal tax rate), resulting in a combined federal and state tax benefit of $278. The net cost to the taxpayer of the $1,000 contribution was $722. This is shown in column B under Prior Law for Example 1 in Table 1 and replicated in the same column for Example 2. For a taxpayer subject to the AMT, a $1,000 contribution to charity B yielded a combined federal and state benefit of VerDate Sep<11>2014 17:27 Aug 24, 2018 Jkt 244001 $310—the $1,000 contribution multiplied by the taxpayer’s marginal tax rate under the AMT of 26 percent, or $260, plus the value of the deduction from state tax, or $50 ($1,000 times the 5 percent state tax rate). The net cost to the taxpayer of the $1,000 contribution was $690. This is shown in column B under Prior Law for Example 3 in Table 1. Contributing to either charity A or charity B reduced the taxpayer’s combined federal and state tax liability, but the existence of the state tax credit for contributions to charity A made contributions to that organization more attractive. This is seen by comparing the Total Tax Benefit in column A under Prior Law to the corresponding value in column B for each of the three examples. For taxpayers not subject to the AMT, contributions to charity A yielded a combined federal and state tax benefit of $1,000, compared to a combined federal and state tax benefit of $278 for a contribution to charity B. The AMT increased the disparity for contributions to charity A versus charity B, resulting in a combined federal and state tax benefit of $1,260 for a contribution to charity A versus $310 for a contribution to charity B. B. Examples Under Baseline (Current Law and Practices Under the Act) and Proposed Rule The enactment of the SALT cap in the Act has, in limited circumstances, altered the federal tax effects of charitable contributions as described in the following examples. These are illustrated in the columns labeled ‘‘Baseline’’ and ‘‘Proposed Rule’’ in Table 1. 1. Example 1: Taxpayer Is Above the SALT Cap and Not Subject to the AMT a. Baseline If a taxpayer that has a state tax liability of more than $1,000 above the SALT cap and is not subject to the AMT makes a $1,000 contribution to charity A, the deduction for charitable contributions under section 170(a) increases by $1,000, but the deduction for state and local taxes paid under section 164 is unchanged. Consequently, itemized deductions increase by $1,000, and taxable income decreases by $1,000. If the taxpayer is in the 24 percent bracket, federal liability will decrease by $240, and state tax liability will decrease by the $1,000 state tax credit. The combined federal and state tax benefits of the $1,000 contribution are therefore $1,240, and the taxpayer receives a $240 net benefit while the federal government has a loss PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 43567 of $240. This is shown in column A under Baseline for Example 1 in Table 1. b. Proposed rule If the same taxpayer makes the $1,000 contribution to charity A under the proposed rule, the entire $1,000 deduction is not deductible under section 170(a), and the deduction for state and local taxes paid under section 164 is unchanged due to the SALT cap. The taxpayer’s itemized deductions, taxable income, and federal tax liability are unchanged from what they would be in the absence of the contribution. The taxpayer’s state tax liability decreases by $1,000 because of the state tax credit. The combined federal and state tax benefits of the $1,000 contribution are therefore $1,000, or $240 less than under the baseline. This is shown by comparing the Total Tax Benefit in column A under Proposed Rule with the corresponding value in column A under Baseline for Example 1 in Table 1. However, the benefit of the contribution for this taxpayer is the same as the taxpayer faced prior to enactment of the Act. This is shown by comparing the Total Tax Benefit under column A under Proposed Rule with the corresponding value in column A under Prior Law for Example 1 in Table 1. c. Comparison of Contributions to Different Organizations and Proposed Rule Under the baseline and the proposed rule, for a taxpayer with state and local taxes paid over the SALT cap, the value of a contribution to charity B, that is a contribution that results in a one-for-one state income tax deduction and not a state tax credit, is slightly higher than it was pre-Act. This increase is because the state deduction does not reduce the federal deduction for state and local taxes for a taxpayer above the SALT cap. As shown in the Total Tax Benefit row under the B columns for Example 1, under the baseline and the proposed rule, the value of a $1,000 contribution to charity B is $290—the charitable contribution deduction from federal tax ($1,000 times the 24 percent federal tax rate, or $240), plus the value of the deduction from state tax ($1,000 times the 5 percent state tax rate, or $50)— compared to $278 for contributions under prior law (described above). By comparison, as shown in the Total Tax Benefit row under the A columns for Example 1, a contribution to charity A, eligible for a state tax credit, yields a $1,240 tax benefit under the baseline and a $1,000 benefit under the proposed rule. E:\FR\FM\27AUP1.SGM 27AUP1 43568 Federal Register / Vol. 83, No. 166 / Monday, August 27, 2018 / Proposed Rules 2. Example 2: Taxpayer Is Below the SALT Cap and Not Subject to the AMT a. Baseline If a taxpayer that has state and local taxes paid below the SALT cap and is not subject to the AMT makes the $1,000 contribution to charity A, the deduction for charitable contributions under section 170(a) increases by $1,000, and the deduction for state and local taxes paid under section 164 decreases by $1,000. The taxpayer’s itemized deductions, taxable income, and federal tax liability are unchanged from what they would be in the absence of the contribution. The taxpayer’s state tax liability decreases by $1,000 because of the state tax credit. The combined federal and state tax benefits of the $1,000 contribution are therefore $1,000, and the cost to the taxpayer and to the federal government of making the contribution was $0. This situation is identical to prior law or what taxpayers faced prior to enactment of the Act. This is shown is column A under Baseline and Prior Law for Example 2 in Table 1. amozie on DSK3GDR082PROD with PROPOSALS1 b. Proposed Rule If the same taxpayer makes the $1,000 contribution to charity A under the proposed rule, the entire $1,000 contribution is not deductible under section 170(a), but the deduction for state and local taxes paid under section 164 still decreases by $1,000 because of the $1,000 state tax credit. If the taxpayer is in the 24 percent bracket, the federal tax liability will increase by $240. The taxpayer’s state tax liability decreases by the $1,000 state tax credit. The combined federal and state tax benefits of the $1,000 contribution are therefore $760, or $240 less than the baseline. This is shown by comparing the Total Tax Benefit in column A under Proposed Rule with the corresponding value in column A under Baseline for Example 2. In this case, the proposed rule has the effect of increasing the taxpayer’s federal taxable income compared to the baseline if the taxpayer makes a contribution to charity A. c. Comparison of Contributions to Different Organizations, Under Prior Law, Baseline, and Proposed Rule Under prior law, and both the baseline scenario and the proposed rule, the tax benefit of charitable contributions to charity B, which are not eligible for a state tax credit but are deductible from both federal and state taxable income, is unchanged from prior law for taxpayers below the SALT cap. Thus, in this example, the benefit of VerDate Sep<11>2014 17:27 Aug 24, 2018 Jkt 244001 making a contribution to charity B remains $278, as described above for contributions under prior law. This is shown in the Total Tax Benefit row under the B columns for Example 2. By comparison, as shown in the Total Tax Benefit row under the A columns for Example 2, a $1,000 contribution to charity A, eligible for a state tax credit, yields a $1,000 tax benefit under the baseline and a $760 benefit under the proposed rule. 3. Example 3: Taxpayer is Subject to the AMT 5 a. Baseline If a taxpayer subject to the AMT makes a $1,000 contribution to charity A, the contribution reduces the taxpayer’s taxable income under the AMT by $1,000. Under an AMT marginal tax rate of 26 percent, the federal tax benefit of this $1,000 contribution is $260. Because of the dollar-for-dollar state tax credit, the taxpayer would receive a combined federal and state tax benefit of $1,260 for a $1,000 contribution, or a $260 net benefit. This result is identical to the result under prior law (prior to enactment of the Act). This is shown in the A columns under Baseline and Prior Law for Example 3 in Table 1. b. Proposed Rule If the same taxpayer makes the $1,000 contribution to charity A under the proposed rule, the entire $1,000 is not deductible under section 170(a). Therefore, the taxpayer’s taxable income and federal tax liability under the AMT would be unchanged from what they would be in the absence of the contribution. The taxpayer’s state tax liability decreases by $1,000 because of the state tax credit. The combined federal and state tax benefits of the $1,000 contribution are therefore $1,000, or $260 less than under the baseline and under the law prior to enactment of the Act. This is shown by comparing the A columns of Example 3 in Table 1. However, under the proposed rule, taxpayers subject to the AMT are in the same position as taxpayers with state and local taxes paid above the SALT cap who are not subject to the AMT. This is shown by comparing the Total Tax Benefit amount under column A for the Proposed Rule for Example 3 to that for Example 1. 5 The Act increased the amount of income exempt from AMT. We estimate that only about 150,000 taxpayers will be subject to the AMT under the Act, compared to more than 4 million under prior law. PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 c. Comparison of Contributions to Different Organizations, Under Prior Law, Baseline and Proposed Rule Under the baseline and the proposed rule, the treatment of charitable contributions that are deductible from both federal and state taxable income is unchanged from prior law for taxpayers subject to the AMT. This is shown in the B columns for Example 3 in Table 1. In this example, the benefit of making a contribution to charity B remains $310, as described above for contributions under prior law. By comparison, a contribution to a charity A, eligible for a state tax credit, yields a $1,260 tax benefit under the baseline and a $1,000 benefit under the proposed rule. This is shown in column A under Baseline and Proposed Rule for Example 3 in Table 1. IV. Expected Benefits and Costs A. Benefits These proposed regulations likely reduce economically inefficient choices motivated by the potential tax benefits described above if these proposed regulations were not promulgated. Under the prior law and baseline scenarios, state and local governments have an incentive to fund governmental activities through independent entities that are eligible to receive deductible contributions and to establish tax credits. This incentive is particularly strong under a SALT cap scenario where state and local governments may do so solely to enable some taxpayers to circumvent the SALT cap. These proposed regulations substantially diminish this incentive to engage in socially wasteful tax-avoidance behavior. As a result, it is expected that fewer such credit programs would be established in the future under the proposed regulations than under the baseline. To the extent this result occurs, the Treasury Department and IRS estimate that the proposed regulations would reduce overall complexity and paperwork burden for states and for taxpayers who would otherwise engage in charitable contributions solely for the purpose of reducing their state and local tax liability. In addition to reducing paperwork burden, the Treasury Department and IRS anticipate that the proposed regulations will also spare some taxpayers compliance costs associated with complex tax planning designed to avoid the SALT cap. In addition, these proposed regulations are expected to make the federal tax system more neutral to taxpayers’ decisions regarding donations. Under the baseline scenarios, E:\FR\FM\27AUP1.SGM 27AUP1 43569 Federal Register / Vol. 83, No. 166 / Monday, August 27, 2018 / Proposed Rules the combined federal and state tax benefits favor contributions to organizations which give rise to a state tax credit for taxpayers, particularly for taxpayers above the SALT cap. Under the proposed regulations, this economic distortion is expected to be reduced. The Treasury Department and the IRS request comments from the public on the potential extent of this expected reduction in economic distortion. Finally, these proposed regulations provide more certainty to taxpayers by clarifying the rules governing the amount that they can claim as a charitable contribution deduction when they receive a state tax credit or a dollarfor-dollar state tax deduction in exchange for the contribution. B. Costs The proposed regulations may result in some increase in compliance costs for taxpayers who make contributions that generate state tax credits. Under the baseline, for purposes of the charitable contribution deduction under section 170(a), taxpayers did not need to address state tax credits received for purposes of claiming a charitable contribution; however, they would know the amount of credits received as part of the filing process for state returns. In contrast, under the proposed regulations, taxpayers making a contribution to an organization listed in section 170(c) will need to determine the amount of any state tax credits they will receive or expect to receive in order to reduce their charitable contribution deduction under section 170(a). This additional step will generate some additional compliance costs. The compliance burden for recipient organizations that directly issue tax credits may increase under the proposed regulations. In order to take a charitable contribution deduction of $250 or more, a taxpayer must have a contemporaneous written acknowledgment (CWA) from the donee entity, usually provided in the form of a letter. The CWA includes the amount received by the entity or a description of property received. The CWA must also disclose whether the donee provided any goods or services in consideration for the contribution and a description and good faith estimate of the value of those goods or services provided. State and local tax credits are not generally provided by the donee entity, but there may be situations in which the entity would be providing the credit and would need to include it in the CWA provided to the donor. The Treasury Department and the IRS request comments on whether additional guidance is needed on substantiation and reporting requirements for donors and donees making or receiving payments or transfers of property in return for state and local tax credits and the extent to which entities do provide tax credits under certain circumstances. The Treasury Department and the IRS request comments on other potential compliance savings, compliance costs, costs related to increased tax planning and other avoidance behavior, or any effects on charitable contribution decisions that may occur as a result of these proposed regulations. In particular, the Treasury Department and the IRS request comments as to how the proposed regulations might alter incentives regarding contributions to state and local tax credit programs. Based on an analysis of confidential taxpayer return data and forecasts using that data, the Treasury Department and the IRS note that these proposed regulations will leave charitable giving incentives entirely unchanged for the vast majority of taxpayers. After passage of the Act, which significantly increased the standard deduction, it is estimated that ninety percent of taxpayers will not claim itemized deductions of any kind. Those taxpayers are entirely unaffected by these proposed regulations. It is estimated that approximately five percent of taxpayers will itemize and will have state and local income tax deductions above the SALT cap; these taxpayers will receive the same federal tax benefits under the proposed regulations as they received prior to the Act. See Example 1 above. It is estimated that approximately five percent of taxpayers will itemize but will not have state and local income tax deductions above the SALT cap. The federal tax benefits available to this fraction of taxpayers could be affected by the proposed regulations only if they contribute to programs that entitle them to state tax credits of greater than 15 percent. See Example 2 above. The Treasury Department and the IRS believe that most taxpayers in this third category have never used any state tax credit programs affected by the proposed regulations, and that the proposed regulations will have at most a highly limited, marginal effect on taxpayer decisions to donate to tax credit programs that pre-date TCJA, including educational scholarship programs.6 The Treasury Department and the IRS request comments on this important consideration and any potential unintended consequences of the proposed regulations not addressed here. TABLE 1—TAX TREATMENT OF $1,000 CONTRIBUTION TO (A) ORGANIZATION THAT GIVES RISE TO $1,000 STATE TAX CREDIT AND (B) ORGANIZATION FOR WHICH CONTRIBUTION IS DEDUCTIBLE AT THE STATE LEVEL Prior law Baseline Proposed rule Change in A B A B A B amozie on DSK3GDR082PROD with PROPOSALS1 Example 1: Taxpayer Above the SALT Cap, Not Subject to the AMT State Income Tax Liability ............................................... Federal Income Tax: Charitable Contribution Deduction ............................ Deduction for State and Local Taxes ....................... Itemized Deductions ................................................. Taxable Income ........................................................ Federal Tax Liability ......................................................... Total Tax Benefit (Federal + State) ................................. Net Cost to Taxpayer of $1,000 Contribution .................. 6 The Treasury Department and the IRS are aware of potential concerns about educational scholarship programs in particular. Based on projections for VerDate Sep<11>2014 17:27 Aug 24, 2018 Jkt 244001 ¥1,000 ¥50 ¥1,000 ¥50 ¥1,000 ¥50 1,000 ¥1,000 0 0 0 1,000 0 1,000 ¥50 950 ¥950 ¥228 278 722 1,000 0 1,000 ¥1,000 ¥240 1,240 ¥240 1,000 0 1,000 ¥1,000 ¥240 290 710 0 0 0 0 0 1,000 0 1,000 0 1,000 ¥1,000 ¥240 290 710 2018, most taxpayers in the third category described above do not reside in states that offer educational scholarship tax credit programs affected by the PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 proposed regulations, and the vast majority of them have never used such programs. E:\FR\FM\27AUP1.SGM 27AUP1 43570 Federal Register / Vol. 83, No. 166 / Monday, August 27, 2018 / Proposed Rules TABLE 1—TAX TREATMENT OF $1,000 CONTRIBUTION TO (A) ORGANIZATION THAT GIVES RISE TO $1,000 STATE TAX CREDIT AND (B) ORGANIZATION FOR WHICH CONTRIBUTION IS DEDUCTIBLE AT THE STATE LEVEL—Continued Prior law Baseline Proposed rule Change in A B A B A B Example 2: Taxpayer Below the SALT Cap, Not Subject to the AMT State Income Tax Liability ............................................... Federal Income Tax: Charitable Contribution Deduction ............................ Deduction for State and Local Taxes ....................... Itemized Deductions ................................................. Taxable Income ........................................................ Federal Tax Liability ......................................................... Total Tax Benefit (Federal + State) ................................. Net Cost to Taxpayer of $1,000 Contribution .................. ¥1,000 ¥50 ¥1,000 ¥50 ¥1,000 ¥50 1,000 ¥1,000 0 0 0 1,000 0 1,000 ¥50 950 ¥950 ¥228 278 722 1,000 ¥1,000 0 0 0 1,000 0 1,000 ¥50 950 ¥950 ¥228 278 722 0 ¥1,000 ¥1,000 1,000 240 760 240 1,000 ¥50 950 ¥950 ¥228 278 722 Example 3: Taxpayer Subject to the AMT State Income Tax Liability ............................................... Federal Income Tax: Alternative minimum taxable Income ....................... Federal Tax Liability ......................................................... Total Tax Benefit (Federal + State) ................................. Net Cost to Taxpayer of $1,000 Contribution .................. ¥1,000 ¥50 ¥1,000 ¥50 ¥1,000 ¥50 ¥1,000 ¥260 1,260 ¥260 ¥1,000 ¥260 310 690 ¥1,000 ¥260 1,260 ¥260 ¥1,000 ¥260 310 690 0 0 1,000 0 ¥1,000 ¥260 310 690 Assumptions: The taxpayer itemizes deductions and has more than $1,000 of state tax liability. Under prior law, the taxpayer is not subject to the overall limitation on itemized deductions under section 68. The taxpayer faces a 24 percent marginal rate under the federal income tax. If the taxpayer is subject to the AMT, the taxpayer faces a 26 percent marginal rate. A $1,000 contribution to charitable organization A generates a $1,000 state tax credit. A $1,000 contribution to charitable organization B is ineligible for a state tax credit but is deductible under the state’s income tax. The taxpayer faces a 5 percent marginal rate under the state’s income tax. The baseline assumes continuation of the IRS administrative position that state and local tax credits are not reflected as a return benefit or consideration and therefore do not reduce the taxpayer’s charitable contribution deduction under section 170(a). Total Tax Benefit refers to the absolute value of the reduction of the taxpayer’s combined federal and state tax liability. amozie on DSK3GDR082PROD with PROPOSALS1 Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply because the proposed regulations primarily affect individuals and do not impose costs, including a collection of information, on small entities. Therefore, a regulatory flexibility analysis is not required. Pursuant to section 7805(f), this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses. Comments and Public Hearing Before the regulations proposed herein are adopted as final regulations, consideration will be given to any electronic and written comments that are submitted timely to the IRS as prescribed in this preamble under the ADDRESSES heading. The Treasury Department and the IRS request comments on all aspects of the proposed regulations including: (1) Whether there should be recognition of gain or loss when property is transferred in consideration for state or local tax credits that are not de minimis; (2) determination of the basis of a transferable tax credit that a taxpayer sells or exchanges; (3) procedures by which a taxpayer may establish that the taxpayer declined receipt of the state or VerDate Sep<11>2014 17:27 Aug 24, 2018 Jkt 244001 local tax credit; (4) substantiation and reporting requirements for donors and donees making or receiving payments or transfers of property in return for state and local tax credits; (5) for a taxpayer that receives or expects to receive a state or local tax deduction in an amount that exceeds the amount of the taxpayer’s payment or the fair market value of the property transferred to an entity listed in section 170(c), suggestions for calculating the reduction to the charitable contribution deduction; and (6) whether and in what manner the regulations should address other state or local tax benefits, such as tax exclusions, that may be provided as consideration for certain payments or transfers to an entity listed in section 170(c). Finally, the Treasury Department and the IRS request comments on alternative regulatory approaches that would effectively prevent circumvention of the new statutory limitation on state and local tax deductions, consistent with applicable law. All comments submitted will be made available at www.regulations.gov or upon request. A public hearing has been scheduled for November 5, 2018, beginning at 10 a.m. in the Auditorium of the Internal Revenue Building, 1111 Constitution Avenue NW, Washington, DC 20224. Due to building security PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For more information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble. The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit an outline of the topics to be discussed and the time to be devoted to each topic by October 11, 2018. Submit a signed paper or electronic copy of the outline as prescribed in this preamble under the ADDRESSES heading. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing. Drafting Information The principal authors of these proposed regulations are personnel from the Office of the Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS E:\FR\FM\27AUP1.SGM 27AUP1 Federal Register / Vol. 83, No. 166 / Monday, August 27, 2018 / Proposed Rules and the Treasury Department participated in their development. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: ■ Authority: 26 U.S.C. 7805 * * * ■ Par. 2. Section 1.170A–1 is amended by redesignating paragraphs (h)(3) through (h)(5) as paragraphs (h)(4) through (h)(6), and adding a new paragraph (h)(3) to read as follows: § 1.170A–1 Charitable, etc., contributions and gifts; allowance of deduction. amozie on DSK3GDR082PROD with PROPOSALS1 * * * * * (h) * * * (3) Payments resulting in state or local tax benefits. (i) State or local tax credits. Except as provided in paragraph (h)(3)(v) of this section, if a taxpayer makes a payment or transfers property to or for the use of an entity listed in section 170(c), the amount of the taxpayer’s charitable contribution deduction under section 170(a) is reduced by the amount of any state or local tax credit that the taxpayer receives or expects to receive in consideration for the taxpayer’s payment or transfer. (ii) State or local tax deductions. (A) In general. If a taxpayer makes a payment or transfers property to or for the use of an entity listed in section 170(c), and the taxpayer receives or expects to receive a state or local tax deduction that does not exceed the amount of the taxpayer’s payment or the fair market value of the property transferred by the taxpayer to such entity, the taxpayer is not required to reduce its charitable contribution deduction under section 170(a) on account of such state or local tax deduction. (B) Excess state or local tax deductions. If the taxpayer receives or expects to receive a state or local tax deduction that exceeds the amount of the taxpayer’s payment or the fair market value of the property transferred, the taxpayer’s charitable contribution deduction under section 170 is reduced. (iii) In consideration for. For purposes of paragraph (h)(3)(i) of this section, the term in consideration for shall have the meaning set forth in § 1.170A–13(f)(6), VerDate Sep<11>2014 17:27 Aug 24, 2018 Jkt 244001 except that the state or local tax credit need not be provided by the donee organization. (iv) Amount of reduction. For purposes of paragraph (h)(3)(i) of this section, the amount of any state or local tax credit is the maximum credit allowable that corresponds to the amount of the taxpayer’s payment or transfer to the entity listed in section 170(c). (v) State or local tax. For purposes of paragraph (h)(3) of this section, the term state or local tax means a tax imposed by a State, a possession of the United States, or by a political subdivision of any of the foregoing, or by the District of Columbia. (vi) Exception. Paragraph (h)(3)(i) of this section shall not apply to any payment or transfer of property if the amount of the state or local tax credit received or expected to be received by the taxpayer does not exceed 15 percent of the taxpayer’s payment, or 15 percent of the fair market value of the property transferred by the taxpayer. (vii) Examples. The following examples illustrate the provisions of this paragraph (h)(3). The examples in paragraph (h)(6) of this section are not illustrative for purposes of this paragraph (h)(3). Example 1. A, an individual, makes a payment of $1,000 to X, an entity listed in section 170(c). In exchange for the payment, A receives or expects to receive a state tax credit of 70% of the amount of A’s payment to X. Under paragraph (h)(3)(i) of this section, A’s charitable contribution deduction is reduced by $700 (70% × $1,000). This reduction occurs regardless of whether A is able to claim the state tax credit in that year. Thus, A’s charitable contribution deduction for the $1,000 payment to X may not exceed $300. Example 2. B, an individual, transfers a painting to Y, an entity listed in section 170(c). At the time of the transfer, the painting has a fair market value of $100,000. In exchange for the painting, B receives or expects to receive a state tax credit equal to 10% of the fair market value of the painting. Under paragraph (h)(3)(vi) of this section, B is not required to apply the general rule of paragraph (h)(3)(i) of this section because the amount of the tax credit received or expected to be received by B does not exceed 15% of the fair market value of the property transferred to Y. Accordingly, the amount of B’s charitable contribution deduction for the transfer of the painting is not reduced under paragraph (h)(3)(i) of this section. Example 3. C, an individual, makes a payment of $1,000 to Z, an entity listed in section 170(c). In exchange for the payment, under state M law, C is entitled to receive a state tax deduction equal to the amount paid by C to Z. Under paragraph (h)(3)(ii)(A) of this section, C is not required to reduce its charitable contribution deduction under section 170(a) on account of the state tax deduction. PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 43571 (viii) Effective/applicability date. This paragraph (h)(3) applies to amounts paid or property transferred by a taxpayer after August 27, 2018. * * * * * § 1.170A–13 [Amended] Par. 3. Section 1.170A–13(f)(7) is amended by removing the crossreference ‘‘§ 1.170A–1(h)(4)’’ and adding in its place ‘‘§ 1.170A–1(h)(5)’’. ■ Par. 4. Section 1.642(c)–3 is amended by adding paragraph (g) to read as follows: ■ § 1.642(c)–3 Adjustments and other special rules for determining unlimited charitable contributions deduction. * * * * * (g) Payments resulting in state or local tax benefits—(1) In general. If the trust or decedent’s estate makes a payment of gross income for a purpose specified in section 170(c), and the trust or decedent’s estate receives or expects to receive a state or local tax benefit in consideration for such payment, § 1.170A–1(h)(3) applies in determining the charitable contribution deduction under section 642(c). (2) Effective/applicability date. Paragraph (g)(1) of this section applies to payments of gross income after August 27, 2018. Kristen Wielobob, Deputy Commissioner for Services and Enforcement. [FR Doc. 2018–18377 Filed 8–23–18; 4:15 pm] BILLING CODE 4830–01–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2017–0598; FRL–9982– 85—Region 3] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Regional Haze Five-Year Progress Report Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision submitted by the State of Maryland. Maryland’s SIP revision, the Regional Haze Five-Year Progress Report, addresses Clean Air Act (CAA) provisions that require the State to submit periodic reports addressing reasonable progress goals (RPGs) established for regional haze and to make a determination of the adequacy of E:\FR\FM\27AUP1.SGM 27AUP1

Agencies

[Federal Register Volume 83, Number 166 (Monday, August 27, 2018)]
[Proposed Rules]
[Pages 43563-43571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18377]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[REG-112176-18]
RIN 1545-BO89


Contributions in Exchange for State or Local Tax Credits

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking and notification of public 
hearing.

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SUMMARY: This document contains proposed amendments to regulations 
under section 170 of the Internal Revenue Code (Code). The proposed 
amendments provide rules governing the availability of charitable 
contribution deductions under section 170 when a taxpayer receives or 
expects to receive a corresponding state or local tax credit. This 
document also proposes amendments to the regulations under section 
642(c) to apply similar rules to payments made by a trust or decedent's 
estate. This document provides notification of a public hearing on 
these proposed regulations.

DATES: Written and electronic comments must be received by October 11, 
2018. Requests to speak and outlines of topics to be discussed at the 
public hearing scheduled for November 5, 2018, must be received by 
October 11, 2018.

ADDRESSES: Send submissions to Internal Revenue Service, CC:PA:LPD:PR 
(REG-112176-18), Room 5203, P.O. Box 7604, Ben Franklin Station, 
Washington, DC 20044. Submissions may be hand-delivered Monday through 
Friday between the hours of 8:00 a.m. and 4:00 p.m. to CC:PA:LPD:PR 
(REG-112176-18), Courier's Desk, 1111 Constitution Avenue NW, 
Washington, DC 20224, or sent electronically, via the Federal 
eRulemaking Portal at www.regulations.gov (indicate IRS and REG-112176-
18). The public hearing will be held in the IRS Auditorium, Internal 
Revenue Building, 1111 Constitution Avenue NW, Washington, DC 20224.

FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, 
Merrill D. Feldstein and Mon Lam at (202) 317-4059; concerning 
submission of comments and requests for a public hearing, Regina 
Johnson at (202) 317-6901 (not toll-free numbers).

SUPPLEMENTARY INFORMATION: 

Background

    Section 170(a)(1) generally allows an itemized deduction for any 
``charitable contribution'' paid within the taxable year. Section 
170(c) defines ``charitable contribution'' as a ``contribution or gift 
to or for the use of'' any entity listed in that subsection. Section 
170(c)(1) includes a contribution or gift to or for the use of a State, 
a possession of the United States, or any political subdivision of the 
foregoing, but only if the contribution or gift is made exclusively for 
public purposes. Section 170(c)(2) includes, in general, a contribution 
or gift to or for the use of certain corporations, trusts, or community 
chests, funds, or foundations, organized and operated exclusively for 
religious, charitable, scientific, literary, or educational purposes, 
or to foster national or international amateur sports competition, or 
for the prevention of cruelty to children or animals.
    Section 164 generally allows an itemized deduction for the payment 
of certain taxes, including state and local, and foreign, real property 
taxes; state and local personal property taxes; and state and local, 
and foreign, income, war profits, and excess profits taxes. Section 
164(b)(6), as added by section 11042 of ``An Act to provide for 
reconciliation pursuant to titles II and V of the concurrent resolution 
on the budget for fiscal year 2018'' (the Act), Public Law 115-97, 
limits an individual's deduction for the aggregate amount of state and 
local taxes paid during the calendar year to $10,000 ($5,000 in the 
case of a married individual filing a separate return). This new 
limitation applies to taxable years beginning after December 31, 2017, 
and before January 1, 2026.

I. The Charitable Contribution Deduction

    In 1986, the Supreme Court interpreted the phrase ``charitable 
contribution'' in section 170. See United States v. American Bar 
Endowment, 477 U.S. 105, 116-118 (1986). The Court held that the ``sine 
qua non of a charitable contribution is a transfer of money or property 
without adequate consideration''--that is, without the expectation of a 
quid pro quo. Id. at 118. A ``payment of money generally cannot 
constitute a charitable contribution if the contributor expects a 
substantial benefit in return.'' Id. at 116. The Court recognized that 
some payments may have a ``dual character''--part charitable 
contribution and part quid pro quo--whereby the taxpayer receives some 
``nominal benefit'' of lesser value than the payment. Id. at 117. In 
such cases, the Court reasoned, ``it would not serve the purposes of 
Sec.  170 to deny a deduction altogether.'' Id. Instead, the Court 
held, the charitable contribution deduction is allowed, but only to the 
extent the amount donated or the fair market value of the property 
transferred by the taxpayer exceeds the fair market value of the 
benefit received in return, and only if the excess amount was 
transferred with the intent of making a gift. Id.
    For the benefit received in return to reduce the allowable 
charitable contribution deduction under section 170, the benefits 
received, or expected to be received, by a donor need only be greater 
than those benefits that inure to the general public from transfers for 
charitable purposes. See, e.g., Singer Co. v. United States, 449 F.2d 
413, 422-423 (Ct. Cl. 1971); American Bar Endowment, 477 U.S. at 116-17 
(citing Singer); Hernandez v. Commissioner, 490 U.S. 680 (1989). In 
addition, the benefits received need not come directly from the donee 
to reduce the allowable deduction, nor do they need to be specifically 
quantifiable at the time of transfer. See, e.g., Singer, 449 F.2d at 
422. The Treasury Department and the IRS have incorporated many of 
these principles into regulations under section 170. Section 1.170A-
1(h)(1) of the Income Tax Regulations provides, for example, that no 
part of a payment that a taxpayer makes to or for the use of an 
organization described in section 170(c) that is in consideration for 
(as defined in Sec.  1.170A-13(f)(6)) goods or services (as defined in 
Sec.  1.170A-13(f)(5)) is a contribution or gift within the meaning of 
section 170(c) unless the taxpayer (i) intends to make a payment

[[Page 43564]]

in an amount that exceeds the fair market value of the goods or 
services; and (ii) makes a payment in an amount that exceeds the fair 
market value of the goods or services. Section 1.170A-13(f)(5) defines 
goods or services to include cash, property, services, benefits, and 
privileges, and Sec.  1.170A-13(f)(6) provides that a donee provides 
goods or services in consideration for a taxpayer's payment if, at the 
time the taxpayer makes the payment to the donee organization, the 
taxpayer receives or expects to receive goods or services in exchange 
for that payment.

II. State and Local Tax Credit Programs

    In recent years, it has become increasingly common for states and 
localities to provide state or local tax credits in return for 
contributions by taxpayers to or for the use of certain entities listed 
in section 170(c). As the use of these tax credit programs by states 
and localities became more common, the IRS Office of Chief Counsel (IRS 
Chief Counsel), in multiple Chief Counsel Advice memoranda (CCAs), 
considered whether the receipt of state tax credits under these 
programs were quid pro quo benefits that would affect the amount of 
taxpayers' charitable contribution deductions under section 170(a). 
Although CCAs are released to the public for information purposes, it 
should be noted that CCAs are not official rulings or positions of the 
IRS, are not ordinarily reviewed by the Treasury Department, and are 
not precedential.
    In CCAs issued in 2002 and 2004, IRS Chief Counsel reviewed 
programs involving the issuance of state tax credits in return for the 
transfer of conservation easements and for payments to certain child 
care organizations. See CCA 200238041 (July 24, 2002); CCA 200435001 
(July 28, 2004). In these CCAs, IRS Chief Counsel recognized that these 
programs raised complex questions and recommended that the tax credit 
issue be addressed through official published guidance.
    In 2010, another CCA explained that published guidance on the issue 
was not contemplated at that time, but it offered further advice. See 
CCA 201105010 (Oct. 27, 2010) (the 2010 CCA). This 2010 CCA observed 
that a payment to a state agency or charitable organization in return 
for a tax credit might be characterized as either a charitable 
contribution deductible under section 170 or a payment of state tax 
possibly deductible under section 164. The 2010 CCA advised that 
taxpayers may take a deduction under section 170 for the full amount of 
a contribution made in return for a state tax credit, without 
subtracting the value of the credit received in return. The analysis in 
the 2010 CCA assumed that after the taxpayer applied the state or local 
tax credit to reduce the taxpayer's state or local tax liability, the 
taxpayer would receive a smaller deduction for state and local taxes 
under section 164. The 2010 CCA cautioned, however, that ``there may be 
unusual circumstances in which it would be appropriate to 
recharacterize a payment of cash or property that was, in form, a 
charitable contribution as, in substance, a satisfaction of tax 
liability.''
    In addition to the CCAs, IRS Chief Counsel has taken the position 
in the U.S. Tax Court that the amount of a state or local tax credit 
that reduces a tax liability is not an accession to wealth under 
section 61 or an amount realized for purposes of section 1001, and the 
Tax Court has accepted this view. See, e.g., Maines v. Commissioner, 
144 T.C. 123, 134 (2015) (holding that the non-refundable portion of a 
state income tax credit, the amount of which was based on previously-
paid property taxes, reduced the current year's tax liability and is 
not taxable or treated as an item of income); Tempel v. Commissioner, 
136 T.C. 341, 351-354 (2011) (holding that state income tax credits 
received by a donor for the transfer of a conservation easement and 
sold by the donor were capital assets, but that the donor had no 
adjusted basis in the credits), aff'd sub nom. Esgar Corp. v. 
Commissioner, 744 F.3d 648 (10th Cir. 2014). However, the application 
of sections 61 and 1001 to state or local tax credits presents 
different issues than the application of section 170, and none of these 
cases addressed whether a taxpayer's expectation or receipt of a state 
or local tax credit may reduce a taxpayer's charitable contribution 
deduction under section 170. Nor has the Treasury Department or the IRS 
ever addressed this question in published guidance.

III. New Limitation in Section 164

    At the time the 2010 CCA was issued, section 164 generally allowed 
an itemized deduction--unlimited in amount--for the payment of state 
and local taxes. Accordingly, the question of how to characterize 
transfers pursuant to state tax credit programs had little practical 
consequence from a federal income tax perspective because, unless the 
taxpayer was subject to the alternative minimum tax (AMT) under section 
55, a deduction was likely to be available under either section 164 or 
section 170. Permitting a charitable contribution deduction for a 
transfer made in exchange for a state or local tax credit generally had 
no effect on federal income tax liability because any increased 
deduction under section 170 would be offset by a decreased deduction 
under section 164.
    However, as a result of the new limit on the deductibility of state 
and local taxes under section 164(b)(6) (as added by the Act), treating 
a transfer pursuant to a state or local tax credit program as a 
charitable contribution for federal income tax purposes may reduce a 
taxpayer's federal income tax liability. When a charitable contribution 
is made in return for a state or local tax credit and the taxpayer has 
pre-credit state and local tax liabilities in excess of the $10,000 
limitation in section 164(b)(6), a charitable contribution deduction 
under section 170 would no longer be offset by a reduction in the 
taxpayer's state and local tax deduction under section 164. Thus, as a 
consequence, state and local tax credit programs now give taxpayers a 
potential means to circumvent the $10,000 limitation in section 
164(b)(6) by substituting an increased charitable contribution 
deduction for a disallowed state and local tax deduction. State 
legislatures are also now considering or have adopted proposals to 
enact new state and local tax credit programs with the aim of enabling 
taxpayers to characterize their transfers as fully deductible 
charitable contributions for federal income tax purposes, while using 
the same transfers to satisfy or offset their state or local tax 
liabilities.
    In light of the tax consequences of section 164(b)(6) and the 
resulting increased interest in preexisting and new state tax credit 
programs, the Treasury Department and the IRS determined that it was 
appropriate to review the question of whether amounts paid or property 
transferred in exchange for state or local tax credits are fully 
deductible as charitable contributions under section 170.

IV. Notice 2018-54

    Pursuant to this review, in Notice 2018-54, 2018-24 I.R.B. 750, the 
Treasury Department and the IRS announced on June 11, 2018, their 
intention to propose regulations addressing the federal income tax 
treatment of payments made by taxpayers for which the taxpayers receive 
a credit against their state and local taxes. The notice stated that 
federal tax law controls the proper characterization of payments for 
federal income tax purposes and that proposed regulations would assist 
taxpayers in understanding the relationship between the federal 
charitable contribution deduction and the new limitation on the

[[Page 43565]]

deduction for state and local tax payments.
    Although Notice 2018-54 was issued in response to state legislation 
proposed after the enactment of the limitation on state and local tax 
deductions under section 164(b)(6), the rules in these proposed 
regulations are based on longstanding federal tax law principles, which 
apply equally to taxpayers regardless of whether they are participating 
in a new state and local tax credit program or a preexisting one. 
Accordingly, the proposed regulations, and the analysis underlying the 
proposed regulations, are intended to apply to transfers pursuant to 
state and local tax credit programs established under the recent state 
legislation as well as to transfers pursuant to state and local tax 
credit programs that were in existence before the enactment of section 
164(b)(6).

V. Proposed Regulations

    After reviewing the issue, and in light of the longstanding 
principles of the cases and tax regulations discussed above, the 
Treasury Department and the IRS believe that when a taxpayer receives 
or expects to receive a state or local tax credit in return for a 
payment or transfer to an entity listed in section 170(c), the receipt 
of this tax benefit constitutes a quid pro quo that may preclude a full 
deduction under section 170(a). In applying section 170 and the quid 
pro quo doctrine, the Treasury Department and the IRS do not believe it 
is appropriate to categorically exempt state or local tax benefits from 
the normal rules that apply to other benefits received by a taxpayer in 
exchange for a contribution. Thus, the Treasury Department and the IRS 
believe that the amount otherwise deductible as a charitable 
contribution must generally be reduced by the amount of the state or 
local tax credit received or expected to be received, just as it is 
reduced for many other benefits. Accordingly, the Treasury Department 
and the IRS propose regulations proposing to amend existing regulations 
under section 170 to clarify this general requirement, to provide for a 
de minimis exception from the general rule, and to make other 
conforming amendments.
    Compelling policy considerations reinforce the interpretation and 
application of section 170 in this context. Disregarding the value of 
all state tax benefits received or expected to be received in return 
for charitable contributions would precipitate significant revenue 
losses that would undermine and be inconsistent with the limitation on 
the deduction for state and local taxes adopted by Congress in section 
164(b)(6).\1\ Such an approach would incentivize and enable taxpayers 
to characterize payments as fully deductible charitable contributions 
for federal income tax purposes, while using the same payments to 
satisfy or offset their state or local tax liabilities. Disregarding 
the tax benefit would also undermine the intent of Congress in enacting 
section 170, that is, to provide a deduction for taxpayers' gratuitous 
payments to qualifying entities, not for transfers that result in 
economic returns. The Treasury Department and the IRS believe that 
appropriate application of the quid pro quo doctrine to substantial 
state or local tax benefits is consistent with the Code and sound tax 
administration.
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    \1\ The Joint Committee on Taxation estimated that the 
limitation on state and local tax deductions along with certain 
other reforms of itemized deductions would raise $668 billion over 
ten years. A substantial amount of this revenue would be lost if 
state tax benefits received in exchange for charitable contributions 
were ignored in determining the charitable contribution deduction. 
This estimate is not a revenue estimate of the proposed regulations, 
in part because it includes other reforms of itemized deductions but 
does not reflect certain other provisions of the Act. See Joint 
Committee on Taxation, ``Estimated Budget Effects of the Conference 
Agreement for H.R. 1, The `Tax Cuts and Jobs Act,' '' JCX-67-17, 
December 18, 2017 available at https://www.jct.gov/publications.html?func=startdown&id=5053.
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Explanation of Provisions

    The proposed regulations generally provide that if a taxpayer makes 
a payment or transfers property to or for the use of an entity listed 
in section 170(c), and the taxpayer receives or expects to receive a 
state or local tax credit in return for such payment, the tax credit 
constitutes a return benefit, or quid pro quo, to the taxpayer and 
reduces the charitable contribution deduction.
    In addition to credits, the proposed regulations also address state 
or local tax deductions claimed in connection with a taxpayer's payment 
or transfer. Although deductions could be considered quid pro quo 
benefits in the same manner as credits, the Treasury Department and the 
IRS believe that sound policy considerations as well as considerations 
of efficient tax administration warrant making an exception to quid pro 
quo principles in the case of dollar-for-dollar state or local tax 
deductions. Because the benefit of a dollar-for-dollar deduction is 
limited to the taxpayer's state and local marginal rate, the risk of 
deductions being used to circumvent section 164(b)(6) is comparatively 
low. In addition, if state and local tax deductions for charitable 
contributions were treated as quid pro quo benefits, it would make the 
accurate calculation of federal taxes and state and local taxes 
difficult for both taxpayers and the IRS. For example, the value of a 
deduction could vary based on the taxpayer's marginal or effective 
state and local tax rates, making for more complex computations and 
adding to administrative and taxpayer burden. The proposed regulations 
thus allow taxpayers to disregard dollar-for-dollar state or local tax 
deductions. However, the proposed regulations state that, if the 
taxpayer receives or expects to receive a state or local tax deduction 
that exceeds the amount of the taxpayer's payment or the fair market 
value of the property transferred, the taxpayer's charitable 
contribution deduction must be reduced. The Treasury Department and the 
IRS request comments on how to determine the amount of this reduction.
    To provide consistent treatment for state or local tax deductions 
and state or local tax credits that provide a benefit that is generally 
equivalent to a deduction, the proposed regulations include a de 
minimis exception under which a taxpayer may disregard a state or local 
tax credit if such credit does not exceed 15 percent of the taxpayer's 
payment or 15 percent of the fair market value of the property 
transferred by the taxpayer. The de minimis exception reflects that the 
combined value of a state and local tax deduction, that is the combined 
top marginal state and local tax rate, currently does not exceed 15 
percent. Accordingly, under the proposed regulations, a state or local 
tax credit that does not exceed 15 percent does not reduce the 
taxpayer's federal deduction for a charitable contribution. The 
Treasury Department and the IRS request comments on this proposed 
exception.
    In drafting the proposed regulations, the Treasury Department and 
the IRS also considered whether a taxpayer may decline the receipt or 
anticipated receipt of a state or local tax credit by taking some 
affirmative action at the time of the taxpayer's payment or transfer. 
See Rev. Rul. 67-246, 1967-2 C.B. 104 (allowing a full charitable 
contribution deduction if the taxpayer does not accept or keep any 
indicia of a return benefit). Because procedures for declining the 
state or local tax credit would depend on the procedures of each state 
and locality in administering the tax credits, the Treasury Department 
and the IRS request comments regarding a rule that would allow 
taxpayers to decline state or local tax credits and receive full 
deductions for charitable contributions under section 170.
    Trusts and decedents' estates may claim an income tax deduction for

[[Page 43566]]

charitable contributions under section 642(c). For the same reasons 
provided above, the proposed regulations amend Sec.  1.642(c)-3 to 
provide that the proposed rules under Sec.  1.170A-1(h)(3) apply to 
payments made by a trust or decedent's estate in determining its 
charitable contribution deduction under section 642(c).

Proposed Applicability Date

    The amendments to these regulations are proposed to apply to 
contributions after August 27, 2018.

Special Analyses

    Executive Orders 12866 and 13563 direct agencies to assess costs 
and benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). Executive Order 13563 
emphasizes the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. 
These proposed regulations have been designated as subject to review 
under Executive Order 12866 pursuant to the Memorandum of Agreement 
(April 11, 2018) between the Treasury Department and the Office of 
Management and Budget (OMB) regarding review of tax regulations. OMB 
has determined that the proposed regulations are subject to review 
under section 1(b) of the Memorandum of Agreement. These proposed 
regulations have been reviewed by OMB. These proposed regulations are 
anticipated to be regulatory actions under E.O. 13771. The analysis 
below can provide further detail on this designation.

I. Need for Regulations

    These proposed regulations provide guidance on the deductibility of 
charitable contributions when a taxpayer receives or expects to receive 
a corresponding state or local tax credit. These proposed regulations 
are intended to clarify the relationship between the federal charitable 
contribution deduction and the recently-enacted statutory limitation on 
deductions for state and local taxes paid (the ``SALT cap'') and to 
make the federal tax system more neutral with respect to taxpayers' 
decisions regarding donations. Compelling policy considerations 
reinforce the interpretation and application of section 170 in this 
context. Disregarding the value of all state tax benefits received or 
expected to be received in return for charitable contributions would 
precipitate revenue losses that would undermine and be inconsistent 
with the limitation on the deduction for state and local taxes adopted 
by Congress in section 164(b)(6).
    Pursuant to section 6(a)(3)(B) of Executive Order 12866, the 
following qualitative analysis provides further details regarding the 
anticipated impact of the proposed regulations. After identifying a 
baseline in Part II, this analysis provides illustrative scenarios in 
Part III. Part III.A describes the tax effects of the contributions 
prior to enactment of the SALT cap in the Act. Part III.B provides 
examples comparing the enactment of the SALT cap but absent the 
proposed rule (the baseline) to the proposed rule. Finally, Part IV 
provides a qualitative assessment of the potential costs and benefits 
of the proposed rule compared to the baseline.

II. Baseline

    Prior to this proposed rule, there was no authoritative regulatory 
guidance on the treatment of state or local tax credits arising from 
charitable contributions to entities listed in section 170(c), and 
there was no guidance aside from Notice 2018-54 addressing the 
interaction between section 170 and the newly enacted SALT cap. As a 
result, there was a degree of taxpayer uncertainty as to whether state 
and local tax credits are a return benefit that reduces a taxpayer's 
charitable contribution deduction. For informational and analytical 
purposes, however, this analysis assumes as a baseline that state and 
local tax credits are generally not treated as a return benefit or 
consideration and therefore do not reduce the taxpayer's charitable 
contribution deduction under section 170(a).

III. Illustrative Scenarios

    For the following illustrative scenarios, assume the following 
facts: Charitable organizations A and B are entities listed in section 
170(c) and provide similar public goods. Contributions to charity A are 
eligible for a dollar-for-dollar state tax credit. Contributions to 
charity B are ineligible for this credit but are deductible from state 
taxable income. A taxpayer itemizes deductions, and these itemized 
deductions in aggregate are at least $1,000 more than the standard 
deduction. The taxpayer has the choice to contribute $1,000 to charity 
A, and this $1,000 contribution generates a state tax credit of 
$1,000,\2\ that is, the tax credit is dollar-for-dollar but does not 
otherwise figure into the calculation of the taxpayer's state tax 
liability. The taxpayer has more than $1,000 of state tax liability, so 
that the taxpayer's state tax liability is reduced by the entire $1,000 
of the state tax credit. Finally, if the taxpayer makes the $1,000 
contribution that generates a state tax credit of $1,000, the taxpayer 
reduces by $1,000 the withholdings or other payments of state taxes 
during the taxable year in question. The state taxes paid by the 
taxpayer are therefore reduced by the full amount of the state tax 
credit in the same taxable year as the contribution is made.\3\ Further 
assume the taxpayer is in the 24 percent federal tax bracket, itemizes 
federal tax deductions, and has a state tax rate of 5 percent. If the 
taxpayer is subject to the AMT, assume an AMT marginal tax rate of 26 
percent.
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    \2\ Note that this analysis only addresses state tax credits 
offering a 100% benefit. The results may differ for credits offering 
a lower benefit, but the comparative results of the below 
illustrative examples would be similar.
    \3\ The results of the examples are generally unchanged if the 
taxpayer instead receives the credit as a refund of state taxes paid 
that were deducted from federal taxable income, as such refund would 
be includible in federal taxable income in the following year.
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    The Act and proposed regulations alter the incentives taxpayers 
face about whether and how much to give to organizations that receive 
charitable contributions as well as to which organizations. This is 
illustrated in the following scenarios, which are also summarized in 
Table 1 (below).

A. Prior Law: Section 170 Charitable Contributions Prior to the Act

    The tax effects of contributions prior to enactment of the Act are 
illustrated in the columns labeled ``Prior Law'' in Table 1.
1. Taxpayer Not Subject to AMT
    Prior to enactment of the Act, if the taxpayer made a $1,000 
contribution to charity A that generated a state tax credit of $1,000, 
the deduction for charitable contributions under section 170(a) 
increased by $1,000, and the deduction for state and local taxes paid 
under section 164 decreased by $1,000. The taxpayer's itemized 
deductions, taxable income, and federal tax liability were unchanged 
from what they would have been in the absence of the contribution.\4\ 
The taxpayer's state tax liability decreased by $1,000 because of the 
state tax credit. The combined federal and state tax benefits of the

[[Page 43567]]

$1,000 contribution were therefore $1,000, and the cost to the taxpayer 
and to the federal government of making the contribution was $0. This 
is shown in column A under Prior Law for Example 1 in Table 1 and 
replicated in the same column for Example 2.
---------------------------------------------------------------------------

    \4\ This assumes the taxpayer was not subject to limitations 
such as the overall limitation on itemized deductions under section 
68 or subject to a percentage limitation for the deduction under 
section 170, an assumption that is maintained throughout the 
succeeding discussion.
---------------------------------------------------------------------------

2. Taxpayer Subject to AMT
    If the taxpayer were subject to the AMT under section 55, however, 
there was a net benefit to the taxpayer from contributions to charity 
A, which provided state tax credits. State and local taxes paid are not 
deductible expenses in determining taxable income under the AMT, but 
charitable contributions are deductible expenses in determining taxable 
income under the AMT. If the taxpayer contributed $1,000, taxable 
income under the AMT was reduced by $1,000 due to the charitable 
contribution deduction under section 170, but there was no 
corresponding reduction in the deduction for state and local taxes. 
Under an AMT marginal tax rate of 26 percent, the federal tax benefit 
of this $1,000 contribution would be $260. Because of the dollar-for-
dollar state tax credit, the taxpayer received a combined federal and 
state tax benefit of $1,260 for a $1,000 contribution, a net benefit of 
$260. This is shown in column A under Prior Law for Example 3 in Table 
1.
3. Comparison of Contributions to Different Organizations Under Prior 
Law
    In combination, state and federal tax laws generally provide a 
greater incentive to contribute to organizations eligible for state tax 
credits (charity A) than to other organizations (charity B). The effect 
of a contribution to charity A are described above.
    Prior to enactment of the Act, for a taxpayer not subject to the 
AMT, a $1,000 contribution to charity B yielded a smaller combined 
federal and state tax benefit than to charity A. The state tax benefit 
was $50 ($1,000 times the 5 percent state tax rate). The taxpayer's 
itemized deductions at the federal level increased by $950 (the $1,000 
charitable contribution deduction less than $50 reduction in state 
taxes paid). The federal tax benefit of this increase was $228 ($950 
times the 24 percent federal tax rate), resulting in a combined federal 
and state tax benefit of $278. The net cost to the taxpayer of the 
$1,000 contribution was $722. This is shown in column B under Prior Law 
for Example 1 in Table 1 and replicated in the same column for Example 
2.
    For a taxpayer subject to the AMT, a $1,000 contribution to charity 
B yielded a combined federal and state benefit of $310--the $1,000 
contribution multiplied by the taxpayer's marginal tax rate under the 
AMT of 26 percent, or $260, plus the value of the deduction from state 
tax, or $50 ($1,000 times the 5 percent state tax rate). The net cost 
to the taxpayer of the $1,000 contribution was $690. This is shown in 
column B under Prior Law for Example 3 in Table 1.
    Contributing to either charity A or charity B reduced the 
taxpayer's combined federal and state tax liability, but the existence 
of the state tax credit for contributions to charity A made 
contributions to that organization more attractive. This is seen by 
comparing the Total Tax Benefit in column A under Prior Law to the 
corresponding value in column B for each of the three examples. For 
taxpayers not subject to the AMT, contributions to charity A yielded a 
combined federal and state tax benefit of $1,000, compared to a 
combined federal and state tax benefit of $278 for a contribution to 
charity B. The AMT increased the disparity for contributions to charity 
A versus charity B, resulting in a combined federal and state tax 
benefit of $1,260 for a contribution to charity A versus $310 for a 
contribution to charity B.

B. Examples Under Baseline (Current Law and Practices Under the Act) 
and Proposed Rule

    The enactment of the SALT cap in the Act has, in limited 
circumstances, altered the federal tax effects of charitable 
contributions as described in the following examples. These are 
illustrated in the columns labeled ``Baseline'' and ``Proposed Rule'' 
in Table 1.
1. Example 1: Taxpayer Is Above the SALT Cap and Not Subject to the AMT
a. Baseline
    If a taxpayer that has a state tax liability of more than $1,000 
above the SALT cap and is not subject to the AMT makes a $1,000 
contribution to charity A, the deduction for charitable contributions 
under section 170(a) increases by $1,000, but the deduction for state 
and local taxes paid under section 164 is unchanged. Consequently, 
itemized deductions increase by $1,000, and taxable income decreases by 
$1,000. If the taxpayer is in the 24 percent bracket, federal liability 
will decrease by $240, and state tax liability will decrease by the 
$1,000 state tax credit. The combined federal and state tax benefits of 
the $1,000 contribution are therefore $1,240, and the taxpayer receives 
a $240 net benefit while the federal government has a loss of $240. 
This is shown in column A under Baseline for Example 1 in Table 1.
b. Proposed rule
    If the same taxpayer makes the $1,000 contribution to charity A 
under the proposed rule, the entire $1,000 deduction is not deductible 
under section 170(a), and the deduction for state and local taxes paid 
under section 164 is unchanged due to the SALT cap. The taxpayer's 
itemized deductions, taxable income, and federal tax liability are 
unchanged from what they would be in the absence of the contribution. 
The taxpayer's state tax liability decreases by $1,000 because of the 
state tax credit. The combined federal and state tax benefits of the 
$1,000 contribution are therefore $1,000, or $240 less than under the 
baseline. This is shown by comparing the Total Tax Benefit in column A 
under Proposed Rule with the corresponding value in column A under 
Baseline for Example 1 in Table 1. However, the benefit of the 
contribution for this taxpayer is the same as the taxpayer faced prior 
to enactment of the Act. This is shown by comparing the Total Tax 
Benefit under column A under Proposed Rule with the corresponding value 
in column A under Prior Law for Example 1 in Table 1.
c. Comparison of Contributions to Different Organizations and Proposed 
Rule
    Under the baseline and the proposed rule, for a taxpayer with state 
and local taxes paid over the SALT cap, the value of a contribution to 
charity B, that is a contribution that results in a one-for-one state 
income tax deduction and not a state tax credit, is slightly higher 
than it was pre-Act. This increase is because the state deduction does 
not reduce the federal deduction for state and local taxes for a 
taxpayer above the SALT cap. As shown in the Total Tax Benefit row 
under the B columns for Example 1, under the baseline and the proposed 
rule, the value of a $1,000 contribution to charity B is $290--the 
charitable contribution deduction from federal tax ($1,000 times the 24 
percent federal tax rate, or $240), plus the value of the deduction 
from state tax ($1,000 times the 5 percent state tax rate, or $50)--
compared to $278 for contributions under prior law (described above). 
By comparison, as shown in the Total Tax Benefit row under the A 
columns for Example 1, a contribution to charity A, eligible for a 
state tax credit, yields a $1,240 tax benefit under the baseline and a 
$1,000 benefit under the proposed rule.

[[Page 43568]]

2. Example 2: Taxpayer Is Below the SALT Cap and Not Subject to the AMT
a. Baseline
    If a taxpayer that has state and local taxes paid below the SALT 
cap and is not subject to the AMT makes the $1,000 contribution to 
charity A, the deduction for charitable contributions under section 
170(a) increases by $1,000, and the deduction for state and local taxes 
paid under section 164 decreases by $1,000. The taxpayer's itemized 
deductions, taxable income, and federal tax liability are unchanged 
from what they would be in the absence of the contribution. The 
taxpayer's state tax liability decreases by $1,000 because of the state 
tax credit. The combined federal and state tax benefits of the $1,000 
contribution are therefore $1,000, and the cost to the taxpayer and to 
the federal government of making the contribution was $0. This 
situation is identical to prior law or what taxpayers faced prior to 
enactment of the Act. This is shown is column A under Baseline and 
Prior Law for Example 2 in Table 1.
b. Proposed Rule
    If the same taxpayer makes the $1,000 contribution to charity A 
under the proposed rule, the entire $1,000 contribution is not 
deductible under section 170(a), but the deduction for state and local 
taxes paid under section 164 still decreases by $1,000 because of the 
$1,000 state tax credit. If the taxpayer is in the 24 percent bracket, 
the federal tax liability will increase by $240. The taxpayer's state 
tax liability decreases by the $1,000 state tax credit. The combined 
federal and state tax benefits of the $1,000 contribution are therefore 
$760, or $240 less than the baseline. This is shown by comparing the 
Total Tax Benefit in column A under Proposed Rule with the 
corresponding value in column A under Baseline for Example 2. In this 
case, the proposed rule has the effect of increasing the taxpayer's 
federal taxable income compared to the baseline if the taxpayer makes a 
contribution to charity A.
c. Comparison of Contributions to Different Organizations, Under Prior 
Law, Baseline, and Proposed Rule
    Under prior law, and both the baseline scenario and the proposed 
rule, the tax benefit of charitable contributions to charity B, which 
are not eligible for a state tax credit but are deductible from both 
federal and state taxable income, is unchanged from prior law for 
taxpayers below the SALT cap. Thus, in this example, the benefit of 
making a contribution to charity B remains $278, as described above for 
contributions under prior law. This is shown in the Total Tax Benefit 
row under the B columns for Example 2. By comparison, as shown in the 
Total Tax Benefit row under the A columns for Example 2, a $1,000 
contribution to charity A, eligible for a state tax credit, yields a 
$1,000 tax benefit under the baseline and a $760 benefit under the 
proposed rule.
3. Example 3: Taxpayer is Subject to the AMT \5\
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    \5\ The Act increased the amount of income exempt from AMT. We 
estimate that only about 150,000 taxpayers will be subject to the 
AMT under the Act, compared to more than 4 million under prior law.
---------------------------------------------------------------------------

a. Baseline
    If a taxpayer subject to the AMT makes a $1,000 contribution to 
charity A, the contribution reduces the taxpayer's taxable income under 
the AMT by $1,000. Under an AMT marginal tax rate of 26 percent, the 
federal tax benefit of this $1,000 contribution is $260. Because of the 
dollar-for-dollar state tax credit, the taxpayer would receive a 
combined federal and state tax benefit of $1,260 for a $1,000 
contribution, or a $260 net benefit. This result is identical to the 
result under prior law (prior to enactment of the Act). This is shown 
in the A columns under Baseline and Prior Law for Example 3 in Table 1.
b. Proposed Rule
    If the same taxpayer makes the $1,000 contribution to charity A 
under the proposed rule, the entire $1,000 is not deductible under 
section 170(a). Therefore, the taxpayer's taxable income and federal 
tax liability under the AMT would be unchanged from what they would be 
in the absence of the contribution. The taxpayer's state tax liability 
decreases by $1,000 because of the state tax credit. The combined 
federal and state tax benefits of the $1,000 contribution are therefore 
$1,000, or $260 less than under the baseline and under the law prior to 
enactment of the Act. This is shown by comparing the A columns of 
Example 3 in Table 1. However, under the proposed rule, taxpayers 
subject to the AMT are in the same position as taxpayers with state and 
local taxes paid above the SALT cap who are not subject to the AMT. 
This is shown by comparing the Total Tax Benefit amount under column A 
for the Proposed Rule for Example 3 to that for Example 1.
c. Comparison of Contributions to Different Organizations, Under Prior 
Law, Baseline and Proposed Rule
    Under the baseline and the proposed rule, the treatment of 
charitable contributions that are deductible from both federal and 
state taxable income is unchanged from prior law for taxpayers subject 
to the AMT. This is shown in the B columns for Example 3 in Table 1. In 
this example, the benefit of making a contribution to charity B remains 
$310, as described above for contributions under prior law. By 
comparison, a contribution to a charity A, eligible for a state tax 
credit, yields a $1,260 tax benefit under the baseline and a $1,000 
benefit under the proposed rule. This is shown in column A under 
Baseline and Proposed Rule for Example 3 in Table 1.

IV. Expected Benefits and Costs

A. Benefits

    These proposed regulations likely reduce economically inefficient 
choices motivated by the potential tax benefits described above if 
these proposed regulations were not promulgated. Under the prior law 
and baseline scenarios, state and local governments have an incentive 
to fund governmental activities through independent entities that are 
eligible to receive deductible contributions and to establish tax 
credits. This incentive is particularly strong under a SALT cap 
scenario where state and local governments may do so solely to enable 
some taxpayers to circumvent the SALT cap. These proposed regulations 
substantially diminish this incentive to engage in socially wasteful 
tax-avoidance behavior. As a result, it is expected that fewer such 
credit programs would be established in the future under the proposed 
regulations than under the baseline.
    To the extent this result occurs, the Treasury Department and IRS 
estimate that the proposed regulations would reduce overall complexity 
and paperwork burden for states and for taxpayers who would otherwise 
engage in charitable contributions solely for the purpose of reducing 
their state and local tax liability. In addition to reducing paperwork 
burden, the Treasury Department and IRS anticipate that the proposed 
regulations will also spare some taxpayers compliance costs associated 
with complex tax planning designed to avoid the SALT cap.
    In addition, these proposed regulations are expected to make the 
federal tax system more neutral to taxpayers' decisions regarding 
donations. Under the baseline scenarios,

[[Page 43569]]

the combined federal and state tax benefits favor contributions to 
organizations which give rise to a state tax credit for taxpayers, 
particularly for taxpayers above the SALT cap. Under the proposed 
regulations, this economic distortion is expected to be reduced. The 
Treasury Department and the IRS request comments from the public on the 
potential extent of this expected reduction in economic distortion.
    Finally, these proposed regulations provide more certainty to 
taxpayers by clarifying the rules governing the amount that they can 
claim as a charitable contribution deduction when they receive a state 
tax credit or a dollar-for-dollar state tax deduction in exchange for 
the contribution.

B. Costs

    The proposed regulations may result in some increase in compliance 
costs for taxpayers who make contributions that generate state tax 
credits. Under the baseline, for purposes of the charitable 
contribution deduction under section 170(a), taxpayers did not need to 
address state tax credits received for purposes of claiming a 
charitable contribution; however, they would know the amount of credits 
received as part of the filing process for state returns. In contrast, 
under the proposed regulations, taxpayers making a contribution to an 
organization listed in section 170(c) will need to determine the amount 
of any state tax credits they will receive or expect to receive in 
order to reduce their charitable contribution deduction under section 
170(a). This additional step will generate some additional compliance 
costs.
    The compliance burden for recipient organizations that directly 
issue tax credits may increase under the proposed regulations. In order 
to take a charitable contribution deduction of $250 or more, a taxpayer 
must have a contemporaneous written acknowledgment (CWA) from the donee 
entity, usually provided in the form of a letter. The CWA includes the 
amount received by the entity or a description of property received. 
The CWA must also disclose whether the donee provided any goods or 
services in consideration for the contribution and a description and 
good faith estimate of the value of those goods or services provided. 
State and local tax credits are not generally provided by the donee 
entity, but there may be situations in which the entity would be 
providing the credit and would need to include it in the CWA provided 
to the donor. The Treasury Department and the IRS request comments on 
whether additional guidance is needed on substantiation and reporting 
requirements for donors and donees making or receiving payments or 
transfers of property in return for state and local tax credits and the 
extent to which entities do provide tax credits under certain 
circumstances.
    The Treasury Department and the IRS request comments on other 
potential compliance savings, compliance costs, costs related to 
increased tax planning and other avoidance behavior, or any effects on 
charitable contribution decisions that may occur as a result of these 
proposed regulations. In particular, the Treasury Department and the 
IRS request comments as to how the proposed regulations might alter 
incentives regarding contributions to state and local tax credit 
programs.
    Based on an analysis of confidential taxpayer return data and 
forecasts using that data, the Treasury Department and the IRS note 
that these proposed regulations will leave charitable giving incentives 
entirely unchanged for the vast majority of taxpayers. After passage of 
the Act, which significantly increased the standard deduction, it is 
estimated that ninety percent of taxpayers will not claim itemized 
deductions of any kind. Those taxpayers are entirely unaffected by 
these proposed regulations. It is estimated that approximately five 
percent of taxpayers will itemize and will have state and local income 
tax deductions above the SALT cap; these taxpayers will receive the 
same federal tax benefits under the proposed regulations as they 
received prior to the Act. See Example 1 above. It is estimated that 
approximately five percent of taxpayers will itemize but will not have 
state and local income tax deductions above the SALT cap. The federal 
tax benefits available to this fraction of taxpayers could be affected 
by the proposed regulations only if they contribute to programs that 
entitle them to state tax credits of greater than 15 percent. See 
Example 2 above. The Treasury Department and the IRS believe that most 
taxpayers in this third category have never used any state tax credit 
programs affected by the proposed regulations, and that the proposed 
regulations will have at most a highly limited, marginal effect on 
taxpayer decisions to donate to tax credit programs that pre-date TCJA, 
including educational scholarship programs.\6\ The Treasury Department 
and the IRS request comments on this important consideration and any 
potential unintended consequences of the proposed regulations not 
addressed here.
---------------------------------------------------------------------------

    \6\ The Treasury Department and the IRS are aware of potential 
concerns about educational scholarship programs in particular. Based 
on projections for 2018, most taxpayers in the third category 
described above do not reside in states that offer educational 
scholarship tax credit programs affected by the proposed 
regulations, and the vast majority of them have never used such 
programs.

Table 1--Tax Treatment of $1,000 Contribution to (A) Organization That Gives Rise to $1,000 State Tax Credit and
                    (B) Organization for Which Contribution is Deductible at the State Level
----------------------------------------------------------------------------------------------------------------
                                            Prior law                 Baseline                Proposed rule
             Change in             -----------------------------------------------------------------------------
                                         A            B            A            B            A            B
----------------------------------------------------------------------------------------------------------------
                         Example 1: Taxpayer Above the SALT Cap, Not Subject to the AMT
----------------------------------------------------------------------------------------------------------------
State Income Tax Liability........       -1,000          -50       -1,000          -50       -1,000          -50
Federal Income Tax:
    Charitable Contribution               1,000        1,000        1,000        1,000            0        1,000
     Deduction....................
    Deduction for State and Local        -1,000          -50            0            0            0            0
     Taxes........................
    Itemized Deductions...........            0          950        1,000        1,000            0        1,000
    Taxable Income................            0         -950       -1,000       -1,000            0       -1,000
Federal Tax Liability.............            0         -228         -240         -240            0         -240
Total Tax Benefit (Federal +              1,000          278        1,240          290        1,000          290
 State)...........................
Net Cost to Taxpayer of $1,000                0          722         -240          710            0          710
 Contribution.....................
----------------------------------------------------------------------------------------------------------------

[[Page 43570]]

 
                         Example 2: Taxpayer Below the SALT Cap, Not Subject to the AMT
----------------------------------------------------------------------------------------------------------------
State Income Tax Liability........       -1,000          -50       -1,000          -50       -1,000          -50
Federal Income Tax:
    Charitable Contribution               1,000        1,000        1,000        1,000            0        1,000
     Deduction....................
    Deduction for State and Local        -1,000          -50       -1,000          -50       -1,000          -50
     Taxes........................
    Itemized Deductions...........            0          950            0          950       -1,000          950
    Taxable Income................            0         -950            0         -950        1,000         -950
Federal Tax Liability.............            0         -228            0         -228          240         -228
Total Tax Benefit (Federal +              1,000          278        1,000          278          760          278
 State)...........................
Net Cost to Taxpayer of $1,000                0          722            0          722          240          722
 Contribution.....................
----------------------------------------------------------------------------------------------------------------
                                     Example 3: Taxpayer Subject to the AMT
----------------------------------------------------------------------------------------------------------------
State Income Tax Liability........       -1,000          -50       -1,000          -50       -1,000          -50
Federal Income Tax:
    Alternative minimum taxable          -1,000       -1,000       -1,000       -1,000            0       -1,000
     Income.......................
Federal Tax Liability.............         -260         -260         -260         -260            0         -260
Total Tax Benefit (Federal +              1,260          310        1,260          310        1,000          310
 State)...........................
Net Cost to Taxpayer of $1,000             -260          690         -260          690            0          690
 Contribution.....................
----------------------------------------------------------------------------------------------------------------
Assumptions: The taxpayer itemizes deductions and has more than $1,000 of state tax liability. Under prior law,
  the taxpayer is not subject to the overall limitation on itemized deductions under section 68. The taxpayer
  faces a 24 percent marginal rate under the federal income tax. If the taxpayer is subject to the AMT, the
  taxpayer faces a 26 percent marginal rate. A $1,000 contribution to charitable organization A generates a
  $1,000 state tax credit. A $1,000 contribution to charitable organization B is ineligible for a state tax
  credit but is deductible under the state's income tax. The taxpayer faces a 5 percent marginal rate under the
  state's income tax. The baseline assumes continuation of the IRS administrative position that state and local
  tax credits are not reflected as a return benefit or consideration and therefore do not reduce the taxpayer's
  charitable contribution deduction under section 170(a). Total Tax Benefit refers to the absolute value of the
  reduction of the taxpayer's combined federal and state tax liability.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply 
because the proposed regulations primarily affect individuals and do 
not impose costs, including a collection of information, on small 
entities. Therefore, a regulatory flexibility analysis is not required. 
Pursuant to section 7805(f), this notice of proposed rulemaking will be 
submitted to the Chief Counsel for Advocacy of the Small Business 
Administration for comment on its impact on small businesses.

Comments and Public Hearing

    Before the regulations proposed herein are adopted as final 
regulations, consideration will be given to any electronic and written 
comments that are submitted timely to the IRS as prescribed in this 
preamble under the ADDRESSES heading. The Treasury Department and the 
IRS request comments on all aspects of the proposed regulations 
including: (1) Whether there should be recognition of gain or loss when 
property is transferred in consideration for state or local tax credits 
that are not de minimis; (2) determination of the basis of a 
transferable tax credit that a taxpayer sells or exchanges; (3) 
procedures by which a taxpayer may establish that the taxpayer declined 
receipt of the state or local tax credit; (4) substantiation and 
reporting requirements for donors and donees making or receiving 
payments or transfers of property in return for state and local tax 
credits; (5) for a taxpayer that receives or expects to receive a state 
or local tax deduction in an amount that exceeds the amount of the 
taxpayer's payment or the fair market value of the property transferred 
to an entity listed in section 170(c), suggestions for calculating the 
reduction to the charitable contribution deduction; and (6) whether and 
in what manner the regulations should address other state or local tax 
benefits, such as tax exclusions, that may be provided as consideration 
for certain payments or transfers to an entity listed in section 
170(c). Finally, the Treasury Department and the IRS request comments 
on alternative regulatory approaches that would effectively prevent 
circumvention of the new statutory limitation on state and local tax 
deductions, consistent with applicable law.
    All comments submitted will be made available at 
www.regulations.gov or upon request. A public hearing has been 
scheduled for November 5, 2018, beginning at 10 a.m. in the Auditorium 
of the Internal Revenue Building, 1111 Constitution Avenue NW, 
Washington, DC 20224. Due to building security procedures, visitors 
must enter at the Constitution Avenue entrance. In addition, all 
visitors must present photo identification to enter the building. 
Because of access restrictions, visitors will not be admitted beyond 
the immediate entrance area more than 30 minutes before the hearing 
starts. For more information about having your name placed on the 
building access list to attend the hearing, see the FOR FURTHER 
INFORMATION CONTACT section of this preamble.
    The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who 
wish to present oral comments at the hearing must submit an outline of 
the topics to be discussed and the time to be devoted to each topic by 
October 11, 2018. Submit a signed paper or electronic copy of the 
outline as prescribed in this preamble under the Addresses heading. An 
agenda showing the scheduling of the speakers will be prepared after 
the deadline for receiving outlines has passed. Copies of the agenda 
will be available free of charge at the hearing.

Drafting Information

    The principal authors of these proposed regulations are personnel 
from the Office of the Associate Chief Counsel (Income Tax and 
Accounting). However, other personnel from the IRS

[[Page 43571]]

and the Treasury Department participated in their development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

PART 1--INCOME TAXES

0
Paragraph 1. The authority citation for part 1 continues to read in 
part as follows:

    Authority:  26 U.S.C. 7805 * * *

0
Par. 2. Section 1.170A-1 is amended by redesignating paragraphs (h)(3) 
through (h)(5) as paragraphs (h)(4) through (h)(6), and adding a new 
paragraph (h)(3) to read as follows:


Sec.  1.170A-1  Charitable, etc., contributions and gifts; allowance of 
deduction.

* * * * *
    (h) * * *
    (3) Payments resulting in state or local tax benefits. (i) State or 
local tax credits. Except as provided in paragraph (h)(3)(v) of this 
section, if a taxpayer makes a payment or transfers property to or for 
the use of an entity listed in section 170(c), the amount of the 
taxpayer's charitable contribution deduction under section 170(a) is 
reduced by the amount of any state or local tax credit that the 
taxpayer receives or expects to receive in consideration for the 
taxpayer's payment or transfer.
    (ii) State or local tax deductions. (A) In general. If a taxpayer 
makes a payment or transfers property to or for the use of an entity 
listed in section 170(c), and the taxpayer receives or expects to 
receive a state or local tax deduction that does not exceed the amount 
of the taxpayer's payment or the fair market value of the property 
transferred by the taxpayer to such entity, the taxpayer is not 
required to reduce its charitable contribution deduction under section 
170(a) on account of such state or local tax deduction.
    (B) Excess state or local tax deductions. If the taxpayer receives 
or expects to receive a state or local tax deduction that exceeds the 
amount of the taxpayer's payment or the fair market value of the 
property transferred, the taxpayer's charitable contribution deduction 
under section 170 is reduced.
    (iii) In consideration for. For purposes of paragraph (h)(3)(i) of 
this section, the term in consideration for shall have the meaning set 
forth in Sec.  1.170A-13(f)(6), except that the state or local tax 
credit need not be provided by the donee organization.
    (iv) Amount of reduction. For purposes of paragraph (h)(3)(i) of 
this section, the amount of any state or local tax credit is the 
maximum credit allowable that corresponds to the amount of the 
taxpayer's payment or transfer to the entity listed in section 170(c).
    (v) State or local tax. For purposes of paragraph (h)(3) of this 
section, the term state or local tax means a tax imposed by a State, a 
possession of the United States, or by a political subdivision of any 
of the foregoing, or by the District of Columbia.
    (vi) Exception. Paragraph (h)(3)(i) of this section shall not apply 
to any payment or transfer of property if the amount of the state or 
local tax credit received or expected to be received by the taxpayer 
does not exceed 15 percent of the taxpayer's payment, or 15 percent of 
the fair market value of the property transferred by the taxpayer.
    (vii) Examples. The following examples illustrate the provisions of 
this paragraph (h)(3). The examples in paragraph (h)(6) of this section 
are not illustrative for purposes of this paragraph (h)(3).

    Example 1.  A, an individual, makes a payment of $1,000 to X, an 
entity listed in section 170(c). In exchange for the payment, A 
receives or expects to receive a state tax credit of 70% of the 
amount of A's payment to X. Under paragraph (h)(3)(i) of this 
section, A's charitable contribution deduction is reduced by $700 
(70% x $1,000). This reduction occurs regardless of whether A is 
able to claim the state tax credit in that year. Thus, A's 
charitable contribution deduction for the $1,000 payment to X may 
not exceed $300.
    Example 2.  B, an individual, transfers a painting to Y, an 
entity listed in section 170(c). At the time of the transfer, the 
painting has a fair market value of $100,000. In exchange for the 
painting, B receives or expects to receive a state tax credit equal 
to 10% of the fair market value of the painting. Under paragraph 
(h)(3)(vi) of this section, B is not required to apply the general 
rule of paragraph (h)(3)(i) of this section because the amount of 
the tax credit received or expected to be received by B does not 
exceed 15% of the fair market value of the property transferred to 
Y. Accordingly, the amount of B's charitable contribution deduction 
for the transfer of the painting is not reduced under paragraph 
(h)(3)(i) of this section.
    Example 3.  C, an individual, makes a payment of $1,000 to Z, an 
entity listed in section 170(c). In exchange for the payment, under 
state M law, C is entitled to receive a state tax deduction equal to 
the amount paid by C to Z. Under paragraph (h)(3)(ii)(A) of this 
section, C is not required to reduce its charitable contribution 
deduction under section 170(a) on account of the state tax 
deduction.

    (viii) Effective/applicability date. This paragraph (h)(3) applies 
to amounts paid or property transferred by a taxpayer after August 27, 
2018.
* * * * *


Sec.  1.170A-13  [Amended]

0
Par. 3. Section 1.170A-13(f)(7) is amended by removing the cross-
reference ``Sec.  1.170A-1(h)(4)'' and adding in its place ``Sec.  
1.170A-1(h)(5)''.
0
Par. 4. Section 1.642(c)-3 is amended by adding paragraph (g) to read 
as follows:


Sec.  1.642(c)-3  Adjustments and other special rules for determining 
unlimited charitable contributions deduction.

* * * * *
    (g) Payments resulting in state or local tax benefits--(1) In 
general. If the trust or decedent's estate makes a payment of gross 
income for a purpose specified in section 170(c), and the trust or 
decedent's estate receives or expects to receive a state or local tax 
benefit in consideration for such payment, Sec.  1.170A-1(h)(3) applies 
in determining the charitable contribution deduction under section 
642(c).
    (2) Effective/applicability date. Paragraph (g)(1) of this section 
applies to payments of gross income after August 27, 2018.

Kristen Wielobob,
Deputy Commissioner for Services and Enforcement.
[FR Doc. 2018-18377 Filed 8-23-18; 4:15 pm]
 BILLING CODE 4830-01-P