Update 15 June 09: Rich Schmalbeck (who is on the Duke law faculty, btw) emailed me his comments on my post re MoJo v. IRS. With his okay, here’s what he said:
The Technical Advice Memorandum that turned the tide in your case has almost certainly been published, though I didn’t look to verify that. These are documents prepared by the IRS Chief Counsel’s Office, at the request of either a taxpayer or a field office of the IRS, in the context of an audit that raises difficult legal questions. They had long been completely private, but a Freedom of Information Act suit sometime in the 1970s compelled their disclosure, but with information that might identify the taxpayer redacted. They are typically not reviewed at the highest levels of the IRS or Treasury, and so are specifically not intended to establish precedent, but are merely supposed to resolve the issues with respect to a particular taxpayer. But now that they are routinely published, lawyers do consult them, and do sometimes cite them, though with the understanding that a court may not accord them much weight.
I think the Mother Jones Tech Advice is helpful in this issue, but I’m not as sanguine as you seem to be in this piece that it answers all the questions the IRS might raise about a regular, full-service daily newspaper. Mother Jones is more like Harpers, Commentary, and the like, than it is like the Chicago Tribune. And my sense from talking with people in the industry is that while they would like to continue publication of at least some newspapers within a nonprofit framework, they would like nearly every other aspect of publication to remain the same. And that’s where the IRS may say that the operation is not sufficiently distinguishable from an ordinary commercial enterprise to justify tax-exempt status. But we’ll see. In the long run, I think the IRS is going to lose on this question of exempt purpose. But you are quite correct in thinking that no single newspaper wants to head down a road that might involve an IRS audit, followed by litigation in the Tax Court, and ultimately perhaps up to the Court of Appeals level. So it would certainly make things easier if Congress would simply enact legislation clarifying that newspaper publication was a suitable exempt purpose, period. But my understanding is that the bill that would do that isn’t making much progress.
A few days ago, I said I would come back to one specific item from the Duke conference a while back on non profit media, so here goes. It’s triggered by an issue raised in a paper prepped for the conference by Rich Schmalbeck, “Financing the American Newspaper in the Twenty-First Century.” Turns out that a battle royale Mother Jones went through with the Reagan-era IRS has some relevance today. It might point to a way to deal w/the IRS for newspapers and other publications looking to convert to non profit status.
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