Proposed rules aimed at states’ attempts to avoid the $10,000 SALT limit

Proposed regulations issued by the IRS on Aug. 23 provide rules governing the availability of charitable contribution deductions under Sec. 170 when a taxpayer makes a contribution to a state or local agency or charitable fund and receives or expects to receive a corresponding state or local tax credit or deduction in return for the contribution (REG-112176-18).

As the preamble to the proposed regulations explains, a number of states have recently enacted or are considering enacting programs that allow residents to make contributions to state or local agencies or charitable funds in exchange for state or local tax credits. These programs are designed to allow individual taxpayers to circumvent the new $10,000 limit on the deductibility of state and local taxes under P.L. 115-97, the law known as the Tax Cuts and Jobs Act (TCJA), by reducing a taxpayer’s deductible state and local taxes paid, while increasing the taxpayer’s deductible charitable contributions. In New York, for example, local governments and school districts can create charitable funds and offer donors a property tax credit. New York has also created a state charitable gifts trust fund, which permits taxpayers to make contributions for health care or education in return for a state tax credit (donors would also, presumably, attempt to take a federal charitable contribution deduction) (2018 N.Y. S.B. 7509, ch. 59). In New Jersey, taxpayers can make donations to municipal or school charitable funds and receive property tax credits (2018 N.J. S.B. 1893).

The preamble to the proposed regulations outlines the history of the IRS’s and courts’ positions on whether a donor has received something of value in return for the charitable contribution, in which case the deduction under Sec. 170 must be reduced or eliminated. It also discusses the rulings it has issued in this area permitting these deductions in certain cases (see, e.g., Chief Counsel Advice 201105010) and explains that the fact that taxpayers making these donations can now reduce their federal tax liability required it to revisit the issue. It further notes that permitting the deduction would greatly reduce the amount of revenue the federal government would collect from taxpayers avoiding the $10,000 limitation.

The proposed regulations provide that if a taxpayer makes a payment or transfers property to or for the use of an entity listed in Sec. 170(c), and the taxpayer receives or expects to receive a state or local tax credit in return for that payment, then the tax credit constitutes a benefit, or a quid pro quo, to the taxpayer, and the taxpayer must reduce his or her deduction for the charitable contribution by the amount of the state or local tax credit received or expected to be received.

However, the proposed rules allow a charitable contribution deduction if the state program allows dollar-for-dollar state or local tax deductions instead of credits. The IRS reasoned that even though deductions could also be considered quid pro quo benefits, sound policy considerations and efficient tax administration support making an exception to quid pro quo principles for 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 the $10,000 limitation is comparatively low. In addition, if state and local tax deductions for charitable contributions were treated as quid pro quo benefits, it would make it difficult for taxpayers to accurately calculate their state and local taxes and federal taxes.

The proposed rules also contain a de minimis exception from the prohibition of a deduction for state and local tax credits. Under this rule, a taxpayer may disregard a state or local tax credit if the credit does not exceed 15% of the taxpayer’s payment or 15% of the fair market value of the property the taxpayer transferred. This 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%.

The proposed regulations apply to taxpayers making contributions to any state tax credit program created after the TCJA as well as preexisting state tax credit programs created before the TCJA. The regulations are proposed to apply to contributions after Aug. 27, 2018.

The IRS requested comments on all aspects of the proposed rules by Oct. 11, 2018, and plans to hold a public hearing on Nov. 5 in Washington.