30. What are the penalties if a religious organization violates the political campaign intervention prohibition?
Unlike lobbying by a religious organization, which is limited but not prohibited, political campaign intervention by a religious organization is strictly prohibited.59 Thus, the organization’s 501(c)(3) tax exemption may be revoked if it engages in any prohibited activity. This means that the organization’s income for the year would become subject to income tax. An excise tax on political expenditures may also be imposed on the religious organization as well as on the clergy member or other leader who authorized the political expenditures.60 Depending on the circumstances, the excise tax may be imposed in addition to revocation of tax exemption or instead of revocation of tax exemption.61 Generally, if the political expenditure is unintentional, the amount is small and the religious organization institutes operational changes to prevent future political expenditures, the IRS will not seek revocation of tax-exempt status.62
31. Does the IRS target churches for enforcement of the political campaign intervention prohibition?
No. There are special audit procedures that the IRS must follow before commencing any inquiry about potential violation by a church of the political campaign intervention prohibition.63 The IRS may begin a church tax inquiry only if the Director, Exempt Organizations, Examinations, reasonably believes, based on facts and circumstances recorded in writing, that the church may not be qualified for section 501(c)(3) tax exemption, including potential violations of the political campaign intervention prohibition. Once an inquiry is begun, the IRS must follow special procedures set forth in the Internal Revenue Code in its further dealings with the church.64 Thus, the IRS does not have unfettered discretion to investigate activities by churches, including violations of the political campaign intervention prohibition, and must obtain high-level authorization before doing so. Generally, IRS inquiries about potential violations by churches of the political campaign intervention prohibition are initiated based upon facts reported by the media or complaints submitted by third parties.
In anticipation of the 2008 election season, the IRS issued formal guidance to assist organizations exempt from tax under section 501(c)(3) of the Internal Revenue Code in understanding the prohibition against political campaign intervention. This guidance includes 21 examples, each involving a single type of activity and designed to illustrate how facts and circumstances are applied in determining whether a tax-exempt organization has engaged in prohibited political campaign intervention. The IRS cautions that combining more than one type of activity may result in an interaction among such activities that could alter the determination of whether political campaign intervention has occurred. Rev. Rul. 2007-41, 2007-25 I.R.B. 1421 (June 18, 2007).
The IRS website contains a number of helpful resources relating to the prohibition against political campaign intervention for section 501(c)(3) tax-exempt organizations. These include reports on IRS Political Activity Compliance Initiatives for 2004 and 2006, the script of a 2006 IRS phone forum on political campaign intervention, the history of the political campaign intervention prohibition and relevant articles from annual Exempt Organizations Continuing Professional Education Texts. See: Charities, Churches, and Educational Organizations – Political Campaign Intervention, www.irs.gov/charities/charitable/article/0,,id=155030,00.html.
Appendix A: Examples of Impermissible Political Intervention
Minister B is the minister of Church K, [a section 501(c)(3) organization]. Church K publishes a monthly church newsletter that is distributed to all church members. In each issue, Minister B has a column titled “My Views.” The month before the election, Minister B states in the “My Views” column, “It is my personal opinion that Candidate U should be re-elected.” For that one issue, Minister B pays from his personal funds the portion of the cost of the newsletter attributable to the “My Views” column. Even though he paid part of the cost of the newsletter, the newsletter is an official publication of the church. Since the endorsement appeared in an official publication of Church K, it constitutes campaign intervention attributed to Church K. [Pub. 1828, at 7 (Example 2)]
Minister D is the minister of Church M, [a section 501(c)(3) organization]. During regular services of Church M shortly before the election, Minister D preaches on a number of issues, including the importance of voting in the upcoming election, and concludes by stating, “It is important that you all do your duty in the election and vote for Candidate W.” Since Minister D’s remarks indicating support for Candidate W were made during an official church service, they constitute political campaign intervention attributable to Church M. [Pub. 1828, at 8 (Example 4)]
Minister F is the minister of Church O, a section 501(c)(3) organization. The Sunday before the November election, Minister F invites Senate Candidate X to preach to her congregation during worship services. During his remarks, Candidate X states, “I am asking not only for your votes, but for your enthusiasm and dedication, for your willingness to go the extra mile to get a very large turnout on Tuesday.” Minister F invites no other candidate to address her congregation during the senatorial campaign. Because these activities take place during official church services, they are attributed to Church O. By selectively providing church facilities to allow Candidate X to speak in support of his campaign, Church O’s actions constitute impermissible political campaign intervention. [Rev. Rel. 2007-41, at 1423 (Situation 9)]
Church P, a section 501(c)(3) organization, maintains a website that includes such information as biographies of its minister, times of services, details of community outreach programs and activities of members of its congregation. B, a member of the congregation of Church P, is running for a seat on the town council. Shortly before the election, Church P posts the following message on its website, “Lend your support to B, your fellow parishioner, in Tuesday’s election for town council.” Church P has impermissibly intervened in a political campaign on behalf of B. [Rev. Rul. 2007-41, at 1426 (Situation 21)]
Appendix B: Examples of Permissible Political Activity
Minister A is the minister of Church J, [a section 501(c)(3) organization], and is well-known in the community. With their permission, Candidate T publishes a full-page ad in the local newspaper listing five prominent ministers who have personally endorsed Candidate T, including Minister A. Minister A is identified in the ad as the minister of Church J. The ad states, “Titles and affiliations of each individual are provided for identification purposes only.” The ad is paid for by Candidate T’s campaign committee. Since the ad was not paid for by Church J, and the endorsement is made by Minister A in a personal capacity, the ad does not constitute campaign intervention by Church J. [Pub. 1828, at 7 (Example 1)]
Minister C is the minister of Church L, [a section 501(c)(3) organization], and is well-known in the community. Three weeks before the election he attends a press conference at Candidate V’s campaign headquarters and states that Candidate V should be re-elected. Minister C does not say he is speaking on behalf of his church. His endorsement is reported on the front page of the local newspaper and he is identified in the article as the minister of Church L. Since Minister C did not make the endorsement at an official church function, in an official church publication or otherwise use the church’s assets, and did not state that he was speaking as a representative of Church L, his actions do not constitute campaign intervention attributable to Church L. [Rev. Rul. 2007-41, at 1422 (Situation 5)]
FOOTNOTES
59The IRS interprets the political activity prohibition as absolute. See Pub. 1828 at 7; Election Year Issues at 352.
60I.R.C. § 4955(a)(1) and (b)(1); Pub. 1828 at 11; Election Year Issues at 353-363. In order to avoid a second-tier excise tax under section 4955, a religious organization must “correct” any political expenditure by recovering the expenditure to the extent possible and by adopting safeguards to ensure against future political expenditures.
61See Preamble, Final Regulations on Political Expenditures by Section 501(c)(3) Organizations, 60 Fed. Reg. 62,209 (Dec. 5, 1995); Election Year Issues at 353-354.
62Election Year Issues at 354.
63I.R.C. § 7611. These special audit rules apply only to churches and organizations claiming to be churches. In its Political Activity Compliance Initiative for 2006, the IRS indicated that IRS “[a]gents must follow Section 7611 inquiry/examination procedures and the Director, Examinations, must personally review the complete case file to determine if a reasonable belief exists and must personally approve and sign church inquiry and examination letters involving churches.” (http://www.irs.gov/pub/irs-tege/paci_procedures_feb_22_2006.pdf.)
