The Private Foundation Excise Tax on Self-Dealing: Contours, Comparisons, and Character

This paper considers section 4941, the private foundation excise tax on self-dealing, on the occasion of its fiftieth anniversary. Part I gives background on section 4941. Part II compares the rules of section 4941 to the parallel ones applicable to public charities, including the special rules for supporting organizations and donor advised funds. The fiftieth anniversary of the private foundation excises taxes is also an appropriate time to confront two foundational questions, and Part III does so. It first asks whether we can view the private foundation taxes in general and section 4941 in particular as constitutional exercises of Congress’s taxing power under the tests announced in National Federation of Independent Businesses v. Sibelius. Second, it considers whether we should characterize the section 4941 excise tax as a Pigouvian tax – a hot category among economists but less familiar to lawyers. It answers “maybe not” to the first and “yes but” to the second. Inconsistent Congressional treatment of self-dealing by section 501(c)(3) organizations and the low level of enforcement lead me to question the effectiveness of our current self-dealing rules. Thus, this examination concludes by suggesting a number of possible changes to the excise taxes applicable to tax-exempt organizations. The conclusion not only considers in detail a relatively small but potentially significant change – expanding abatement rules for first-tier excise taxes to section 4941, but also endorses a large one – the suggestion that approaches outside of the Internal Revenue Service be considered for regulating the charitable sector.