Tax Cuts and Jobs Act Update Released
In our first communication regarding the Tax Cuts and Job Act’s partial repeal of the Johnson Amendment, we mentioned there was no guarantee the language of the initial draft would survive the legislative process. With the draft legislation’s passage by the House Ways and Means Committee, the language addressing the Johnson Amendment has already been modified, in two significant ways. First, the partial repeal now would apply to all Section 501(c)(3) organizations, rather than just churches. Second, the partial repeal would be only temporary – it would go into effect on January 1, 2019, and would then sunset after December 31, 2023.
Legal Services Department
November 10, 2017
GCFA’s Legal Services Department previously provided information regarding President Trump’s intent to repeal the so-called “Johnson Amendment.” On November 2, 2017, an initial draft of the “Tax Cuts and Jobs Act” (H.R. 1) was released. The 429-page bill would implement numerous and varied changes to the Internal Revenue Code. Among the extensive proposals contained in the Act is a partial repeal of the Johnson Amendment.
The Act, as currently drafted, would allow churches, their integrated auxiliaries, and conventions or associations of churches to engage in certain political campaign activities without jeopardizing their tax-exempt status. Specifically, those organization would not be treated as campaigning on behalf of a candidate for public office “solely because of the content of any homily, sermon, teaching, dialectic, or other presentation made during religious services or gatherings,” as long as such content both (1) occurs as a part of the organization’s “regular and customary activities in carrying out its exempt purpose” and (2) produces nothing more than “de minimis incremental expenses.”
We believe there are a few important takeaways from this language. First, this is only the initial draft of the Act. It is only beginning is journey through the legislative process. Should this portion of the Act eventually become law, there is no guarantee the language in the initial draft will be retained. Second, even if the language remains as is, it would not be a full and complete repeal of the Johnson Amendment. It does not apply to all 501(c)(3) organizations. And for those to which it does apply – i.e., churches, their integrated auxiliaries, and conventions or associations of churches – the Act’s language is still not a total repeal of the ban on political campaign activities. For example, the proposed language would not appear to permit a church to hold a rally for a particular candidate, or to circulate literature which promotes a particular candidate. Finally, given the targeted nature of the language, opponents may raise First Amendment objections to the current language.
GCFA’s Legal Services Department will continue to monitor the Act’s progress and report on any significant developments.