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TAXING SOCIAL ENTERPRISE

To date, not much scholarship or research has focused upon the income tax aspects of social enterprise, but this editor is delighted to report on three recent works that do.

First, Professor Lloyd Mayer (Notre Dame) and Joseph Ganahl (J.D. Notre Dame 2013) have written a fascinating article examining whether social enterprise organizations should be entitled to tax preferences similar to that given to tax-exempt nonprofits. The article, Taxing Social Enterprise, weighs the arguments pro and con for affording charity-like tax benefits to social enterprise organizations. The article ultimately concludes that such benefits are not appropriate. Nevertheless, the article views the new legal forms for conducting social enterprise as a permanent part of the legal landscape and offers suggestions for favorable but modest reform to treat them appropriately for tax purposes. The excellent article, which will be published in the Stanford Law Review, may be found on SSRN here.

Second, Emily Cohen (J.D. William & Mary 2013) has authored a student note analyzing how the socially beneficial expenses of a benefit corporation fit within the IRC § 162 requirement that expenses be “ordinary and necessary” in order to be tax deductible. The note essentially argues that although “benefit expenses” may not fit neatly within the traditional understanding of IRC § 162, such expenses nevertheless should be fully deductible by a benefit corporation because they presumably are “appropriate and helpful” to a benefit corporation’s for-profit purpose: creating or furthering a general or specific public benefit. The note may be found here.

Finally, a new report from the Lilly Family School of Philanthropy at Indiana University finds that private foundations have increased the overall amount of their program-related investments from $139 million in 1990 to $701 million in 2009; however, the report also concludes that, when it comes to PRIs, there still is much more talk than action. As this editor has discussed previously, program-related investments, or “PRIs,” are tax-favored investments that private foundations may make to further their charitable mission. This new report from the Lilly Family School of Philanthropy contains a wealth of interesting data about PRIs. As we learn more about when and where PRIs are being utilized, perhaps social enterprise organizations will benefit. The press release summarizing the School’s report may be found here, and the full report may be found here.

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