The year of speculation is over. Nonprofit leaders finally know what proposed tax reform will mean for the sector and the earlier reports look grim, with estimates predicting that a doubled standard deduction without a universal deduction will, alone, lead to a $13 billion loss in giving.
The 429-page Tax Cuts and Jobs Act, released on Thursday, contains numerous provisions with implications for the sector, including the partial repeal of the Johnson Amendment, a flat 1.4-percent tax on investment income for foundations, and a 1.4-percent excise tax on higher-education endowments. The bill will likely receive a “chairman markup” from Rep. Kevin Brady (R-Texas) early next week before addition markups from the House Ways & Means Committee.
The bill is expected to hit the House floor on Nov. 13 for an amendment process, the depth of which will likely be determined by Brady, according to Hadar Susskind, senior vice president of government relations for the Council on Foundations.
Members of the House of Representatives are expected to vote on the bill within the coming weeks. The Senate will presumably release its own bill next week, though Sen. Orrin Hatch (R-Utah), chairman of the Senate Finance Committee, has been noncommittal about a timeframe.
“They did a number of things: some good, some bad, some god awful,” said David Thompson, vice president of public policy for the National Council of Nonprofits. Of particular interest for the council is the partial repeal of the Johnson Amendment — which prohibits 501(c)(3) organizations from engaging in partisan politics — and the near-doubling of the standard deduction without the benefit of a universal deduction, which some leaders in the sector hoped would accompany an increased standard deduction.
The bill increases the standard deduction to $24,400 for couples and half that, $12,200, for individuals, up from $12,700 and $6,350, respectively. The exact impact of such a change is unclear. Original estimates were that a doubling of the standard deduction without the inclusion of a universal deduction would reduce the number of itemizers from about one-third of filers to about 5 percent. An inserted property tax exemption might bump that 5 percent figure up a few points, but it will still lead to a precipitous drop in itemizers and, by consequence, a likely drop in giving.
“They’ve narrowed the tax incentive to give,” Thompson said. “[Tax incentives] aren’t the only reason to give, but they do encourage people to give more.”
The Alliance for Charitable Reform (ACR), in a Thursday statement, stood by the 5 percent number and estimated that the effect could be a reduction in giving by as much as $13 billion. The release goes on to endorse the Universal Charitable Giving Act of 2017, authored by Rep. Mark Walker (R-NC), that would step in and provide the deduction to all Americans in spite of the increased standard deduction.
The National Council has been vocally opposed to any repeal of the Johnson Amendment, named after then-senator Lyndon B. Johnson, Thompson added. Though initially floated as a complete repeal, the bill provides an exception only for churches and related auxiliaries. Thompson compared the partial repeal to the Supreme Court’s Citizens United opinion and said that it creates a “loophole begging for abuse,” such as sham congregations.
The repeal also creates an Equal Protection Clause issue by treating churches differently from other 501(c)(3) entities, Thompson said, and will make enforcement difficult on the Internal Revenue Service (IRS) as churches do not file Form 990s.
“It politicizes charitable nonprofits,” Thompson said. “It allows people to get a tax deduction while promoting partisan politics. That taints all of us.”
The portion of a filer’s adjusted gross income that may be deducted has been increased from 50 percent to 60 percent, potentially opening the door for wealthy donors and retirees to give more. A tax on endowments for private colleges and universities however, creates a slippery slope for the potential taxation of endowments for other types of nonprofits, Thompson said.
Private colleges and universities will have a tax imposed “equal to 1.4 percent of the net investment income of such institutions for the taxable year,” according to the bill.
Association of American Universities President Mary Sue Coleman was critical of the excise tax on endowments in a release reacting to the bill. Endowment funds are necessary to serving students and the surrounding community, according to Coleman.
“[I]mposing an excise tax on nonprofit private university endowments is a short-sighted move that will only harm students and their families,” she said. “Endowments support substantial student aid and student service programs, and provide funding for instruction, research, and for building and maintaining classrooms, labs, libraries, and other facilities.”
A reduction in the foundation tax from 2 percent to 1.35-percent had previously been identified as revenue neutral, according to Susskind, but policy makers had sought to shoot for a flat 1 percent. There was support for legislation dropping the tax to a flat 1 percent and the fact that the House went with the 1.4 percent shows that there was some “digging in the couch cushions” for extra revenue, he said.
Aside from the foundation tax, Susskind echoed Thompson in that the big takeaways are the lack of a universal deduction and partial repeal of the Johnson Amendment, which Susskind said was unclearly worded as to whether it applied to all houses of worship or just churches. The decision to leave out the universal deduction will potentially impact both organizational coffers and community need, Susskind predicted.
“That means a loss of billions of dollars for charities and that means a loss of billions of dollars in services,” he said. “I don’t see this Congress rushing out to put a lot of money into social services, so it remains to be seen how that hole gets filled.”
The bill, further, might slash job growth in the sector, added Daniel Cardinali, president and CEO of Independent Sector. In addition to the lack of a universal deduction, Cardinali, in a statement, opined that the elimination of the estate tax shows that the bill’s purpose is to shift resources from the charitable sector to wealthy Americans.
“Rather than unlocking more charitable giving to encourage more people to invest in their communities, this bill moves in the wrong direction and only incentives a small, wealthy group of people to give,” Cardinali said. “The bill raises taxes on charities to fund tax cuts to corporations – halting revenue flowing into the sector. As a result, the charitable sector, which is the third largest employer in the country, will likely see job loss, not job growth.”