March 7, 2008

Politics and the Pulpit 2008

Religious Organization Facilities and Publications

25. May the facilities of religious organizations be used for civic or political events? 

Religious organizations may permit the use of auditoriums and gymnasium facilities to serve as polling places on Election Day without violating the political campaign intervention prohibition. A religious organization may also rent its facilities to candidates or political parties provided that the facilities are not made available for free or at a reduced charge, are made available to candidates on the same basis as they are to other users and are made available to all candidates on an equal basis. Moreover, the religious organization renting out its facility cannot advertise, promote or provide other services in connection with the political event.48 Income from the rental of the facilities generally will not be subject to unrelated business income tax, provided no ancillary services (e.g., supplying catering services for the event) are provided in connection with the facility rental.49

26. Do special rules apply to websites belonging to religious organizations?

No. The same rules governing political activity generally apply to materials posted on websites sponsored by religious organizations.50 An activity that violates the political campaign intervention prohibition in another medium will also violate the political campaign intervention prohibition if conducted through a website sponsored by a religious organization. If a religious organization establishes a link on its website, it is responsible for the consequences of establishing and maintaining that link, even if it has no control over the content of the linked site. To lessen the risks of violating the political campaign intervention prohibition, religious organizations should periodically monitor linked content.51

27. Do links to candidate-related materials constitute political campaign intervention?

Not necessarily. The IRS will evaluate all facts and circumstances with respect to candidate-related links to determine whether political campaign intervention has occurred, including the context for the link on the religious organization’s website; the exempt purpose, if any, served by offering the link; whether all candidates are represented; and the directness of the link between the religious organization’s website and the webpage containing materials favoring or opposing candidates.52

28. May religious organizations sell paid political advertising in their publications?

Under certain circumstances, religious organizations may sell paid political advertising without violating the political campaign intervention prohibition. The political advertising must be accepted on the same basis as other, non-political advertising, must be identified as paid political advertising and must be available on an equal basis to all candidates. Further, the religious organization must expressly state that it does not endorse the candidates whose ads appear. Additional factors, such as the manner in which the religious organization solicits political ads and the manner in which political ads are presented, will also be considered. For example, a religious organization that actively solicited ads from one candidate but merely accepted ads from other candidates would not be considered to have made the ads available on an equal basis.53 Once a religious organization accepts paid political advertising, it may not selectively decline ads from candidates whose views do not agree with those of the organization. Other factors to be considered in determining whether the provision of paid political advertising constitutes political campaign intervention include whether advertising is available only to candidates and not to the general public; whether the fees charged to candidates for advertising are the customary and usual fees; and whether the advertising activity is an ongoing activity.54 Religious organizations may not accept free or reduced-rate political ads, as this would constitute an in-kind contribution to the candidate. Religious organizations are subject to unrelated business income tax on the income from their paid political advertising.55

29. May a religious organization sell or rent its mailing list to a candidate, political party or PAC?

A religious organization may sell or rent its mailing list without violating the political campaign intervention prohibition, provided it sells or rents the list to the candidate, political party or PAC on the same basis on which it rents the list to others, and the list is available to all other candidates on the same basis.56 A religious organization may not provide its mailing list to a candidate, political party or PAC without charge, at a reduced charge or on a selective or preferential basis, as this would constitute an in-kind contribution. Other factors to be considered in determining whether the selling or renting of mailing lists constitutes political campaign intervention include whether mailing lists are available only to candidates and not to the general public; whether the fees charged to candidates for mailing lists are the customary and usual fees; and whether the mailing list activity is an ongoing activity.57 Sale or rental of mailing lists to candidates, political parties or PACs may subject the religious organization to unrelated business income tax liability if the transaction is not structured as a licensing arrangement.58

FOOTNOTES

48See Rev. Rul. 2007-41 at 1425 (Situation 17); Election Year Issues at 383.

49I.R.C. § 512(b)(3); Pub. 1828 at 13.

50Rev. Rul. 2007-41 at 1425-6.

51Id. at 1426.

52Id.

53Election Year Issues at 384.

54Rev. Rul. 2007-41 at 1425.

55I.R.C. § 513(c); Pub. 1828 at 12.

56Pub. 1828 at 10-11; Election Year Issues at 383-384.

57Rev. Rul. 2007-41 at 1425.

58I.R.C. § 513(h)(1)(B), which provides that the sale, exchange or rental of mailing lists among section 501(c)(3) organizations is not an unrelated trade or business. Courts have concluded generally that income from the licensing of mailing lists to non-section 501(c)(3) organizations is non-taxable royalty income under section 512(b)(2) of the Code.