The problematic charitable-donation tax deduction

By Felix Salmon
November 28, 2011
David Kocieniewski has a long article about Ronald Lauder as sophisticated consumer of tax-avoidance advice.

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David Kocieniewski has a long article about Ronald Lauder as sophisticated consumer of tax-avoidance advice, who has managed to become worth somewhere north of $3 billion even as he’s given away hundreds of millions of dollars to charitable causes. (In 1988 he was worth less than $250 million; he inherited a lot of money from his mother in 2004, but today his stake in Estee Lauder constitutes only about one fifth of his net worth.)

Kocieniewski’s article raises a salient question: should the tax deduction for charitable contributions be abolished, capped, or otherwise profoundly reworked? President Obama’s jobs bill includes an idea he’s been unsuccessfully pushing ever since he became president: that the deduction for charitable giving be capped at 28%, even if your top marginal tax rate is 35%. According to a recent paper from the Center on Philanthropy at Indiana University, this modest tweak to the tax code would produce about $20 billion per year for the public fisc, while reducing total charitable giving by about $2 billion per year. That seems like a great idea to me, whether or not the government uses some of the proceeds to support the worthy charities which lose out.

Among those worthy charities, however, I would not include the Neue Galerie. It seems that Lauder has not actually donated his $135 million portrait of Adele Bloch-Bauer to the gallery; if and when he does, however, he’ll be able to deduct the full amount from his taxes at the top marginal rate of 35%, and thereby reduce his tax bill by more than $47 million. (If he can persuade the IRS that the painting has risen in value since he bought it, the deduction would be worth more still.)

Put another way, the government will spend $47 million so that Ronald Lauder can transfer a painting from his own ownership to that of a museum he controls. The painting doesn’t even need to be moved into the museum: it’s there already, and has been there since the day the museum opened. As far as the public and the art world are concerned, nothing will have changed — but as far as Lauder is concerned, he has a “reduce your tax bill by $47 million any time you need to” card just sitting in his back pocket.

There is very little public policy served by giving Lauder such a card. At the margin, does it make him more likely to open up a lovely museum of early 20th Century German and Austrian art in a Fifth Avenue mansion? Possibly. But the connection is tenuous enough that it’s hard to have any conviction in. And two things are undeniable: no one but Ronald Lauder will ever donate a $100 million painting to the Neue Galerie; and Ronald Lauder will never donate his portrait of Adele Bloch-Bauer to anybody else. No matter what happens to the tax code.

What we have right now is a situation where non-profit organizations, especially cultural ones like art galleries and museums, get very little direct government support — and when they do get direct government support, the Republican party in particular loves to rail against such expenditure as being fiscally irresponsible. On the other hand, private museums like the Neue Gallerie are the annual beneficiary of millions of dollars in federal tax expenditures which no one ever seems to question.

There are however hints that the tax-deduction sacred cow might finally be showing the first signs of weakness. Exhibit A: a curious column by Stephen Carter, in Bloomberg View, rattling off the parade of horribles that might happen if the deduction is eliminated.

Carter talks about — without citing or linking to any examples of — “the rising mania among politicians on both sides of the aisle to adopt a policy long popular within academic circles — either eliminating or severely restricting the charitable deduction, at least in the upper-income brackets”. Without any citations or links, it’s hard to know what he’s talking about, but I assume he’s not talking about the Obama proposal: reducing a deduction from 35% to 28% is not my idea of “severely restricting” anything, and if he was talking about an on-the-table presidential policy proposal, I’m sure his editors would have forced him to come out and say so.

In any case, color me enthusiastic about this idea, if indeed there is a “rising mania” for it. There are lots of public policy reasons why the federal government should encourage charitable giving — but I can’t think of any good reasons why that encouragement should be targeted especially at higher-income taxpayers. Generalizing wildly, the poor give to churches and the needy; the rich are much more likely to give to museums or concert halls or their own bespoke charitable trusts.

Carter is absolutely right that the funds donated to charity each year go to a very different set of places than the funds which are spent by the federal government, despite the fact that both are designed “to promote the general welfare”. In that sense, government can never replace charity.

But of course people wouldn’t stop giving to charity if the tax deduction went away — indeed, 70% of Americans don’t itemize their taxes at all. And there will still be plenty of millionaires and billionaires who want to save lives and/or put their names on hospital wings, or support their beloved local opera house, or help keep Central Park beautiful. The only important numbers here are the deltas: if the tax deduction went away, how much would charitable giving go down? And which charities would be hardest hit?

It’s hard to answer the first question with any specificity. But the second is easier to answer. Take a look at the $360,000 salary for the director of the Neue Galerie — or, for that matter, the $1.5 million paid to the general manager of the Metropolitan Opera, or the other seven-figure salaries paid at non-profit hospitals, universities, and foundations. There’s a rich-people money-go-round here: Jeff Raikes of the Gates Foundation doesn’t need his million-dollar salary, but the foundation is paying it anyway, as a matter of principle, presumably to encourage other foundations to start paying similar sums. These 1% salaries aren’t being paid out of small-dollar donations from the masses; they’re being paid out of large-dollar donations from other members of the 1%. And there’s no good reason for the US tax code to encourage such things.

Richard Thaler has a smart take on all this:

Having decided that charitable giving is a worthy cause, the government subsidizes charitable gifts from certain households, and for those chosen to be part of the plan, every dollar donated to a charity is increased by a specified percentage. To qualify, taxpayers must have a substantial home mortgage; the subsidy rate increases with taxable income. Low-income taxpayers receive no subsidy, but donations from qualified high-income taxpayers are subsidized by as much as 40 percent — or more…

The tax subsidy rate should be the same for everyone. This means that rather than being a deduction from income, the subsidy should take the form of a tax credit, so that if you contribute $1,000 and the subsidy rate is 15 percent, your taxes would be reduced by $150. (Ideally this credit should be “refundable,” so it is payable even if your tax bill is zero or negative.)

Carter’s response to Thaler is to say that it’s “a solution that would, of course, ‘cost’ the government more” than it’s spending right now in tax expenditures on the charitable deduction. But again, he doesn’t explain why this should be the case; it’s certainly not self-evident. A universal, refundable 15% tax credit would be a lot more democratic than the current deduction, and allow all Americans to take advantage of it, rather than only the minority who itemize their taxes. And if it did indeed end up costing more than the current system, with its deductions of 35% or more, that would only go to prove how badly skewed towards the rich the current system is.

We’re getting nowhere with respect to deep reform of the tax code, but it’s back on the table, as it is during every presidential election campaign. If we’re serious about it, then we should start taking an ax not only to the mortgage-interest deduction but also to the charitable-donation deduction. Because every time I see reports of a family charitable trust which carefully makes only the minimum outlays each year, I wonder just how charitable a lot of these donations are.

And of course Bloomberg View has a very large dog in this fight: it’s based in the headquarters of the Bloomberg Foundation offices on 78th Street, which are by some margin the most lavish offices I’ve ever seen in my life. Mike Bloomberg has every right to spend as much money as he likes on his foundation. But there’s absolutely no reason why the rest of us should subsidize those expenditures.

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