DocketNumber： Docket Nos. 7043-07, 7093-07.
Citation Numbers： 145 T.C. 278, 2015 U.S. Tax Ct. LEXIS 43, 145 T.C. No. 12
Judges： GALE
Filed Date： 11/17/2015
Status： Precedential
Modified Date： 11/21/2020
Decisions will be entered pursuant to
PF is a corporation exempt from income tax under
*279 GALE, Judge: These cases were consolidated for trial, briefing, and opinion. Respondent determined excise tax deficiencies for petitioner Loren E. Parks and petitioner Parks Foundation (Foundation) as summarized in the following tables.1
Mr. Parks, Docket No. 7043-07
| 1997 | $1,625 | $10,000 |
| 1998 | 5,000 | 10,000 |
| 1999 | 825 | 10,000 |
| 2000 | 5,000 | 10,000 |
*280 Foundation, Docket No. 7093-07
| 1997 | — | $6,500 | $65,000 |
| 1998 | $1,979 | 20,000 | 200,000 |
| 1999 | — | 3,301 | 33,012 |
| 2000 | — | 34,106 | 341,062 |
The issues for decision2 are: (1) whether expenditures by Foundation during its years at issue for the production and broadcast of 30- and 60-second radio messages were taxable expenditures within the meaning of
These cases were submitted for decision without trial under
Foundation's predecessor was incorporated in Oregon in 1977.3 In 1979 the Internal Revenue Service (IRS) recognized *281 Foundation as a tax-exempt organization described in
In its taxable years ended November 30, 1997 through 2000,5 Foundation expended $65,000, $200,000, $33,011, and $341,062, respectively, to produce*46 30-and 60-second radio messages6 and broadcast them on commercial radio stations in Oregon (radio messages). Mr. Parks approved all the foregoing expenditures. All were made to Gregg K. Clapper, the Clapper Agency, or radio stations as Mr. Clapper directed.7*47 Mr. Clapper or the Clapper Agency produced the radio messages and arranged for their broadcast. The parties have stipulated that Mr. Clapper has a long history of involvement with Oregon politics and that the Clapper Agency produces and arranges for the broadcast of political advertisements.
The Oregon Constitution confers upon Oregon citizens the power of initiative, entitling them to propose statutes or amendments to their constitution (referred to as "measures") by petition, and to enact or reject them in elections, independent of the Oregon Legislative Assembly.
During the years at issue the Oregon secretary of state was required to prepare a voters pamphlet8*49 for*48 every general and statewide special election and mail it to each mailing address in Oregon no later than 15, and subsequently 20, days before an election.9
A committee of five citizens was tasked with preparing the explanatory statement for a measure,
The committee was required to file the explanatory statement with the secretary of state, who then was charged with holding a hearing to receive suggested changes and other information relating to the explanatory statement.
The content and context of each radio message at issue are described below, arranged by the year in which the expenditures for the messages were made.
On the ballot in a May 20, 1997, statewide special election was Measure 49. The explanatory statement for Measure 4919 described it as follows: EXPLANATORY STATEMENT In 1994, voters approved an amendment to the Oregon Constitution establishing requirements for work programs for state prison inmates. These provisions in the Oregon Constitution require state corrections officials to establish and operate work and on-the-job training programs so that all eligible inmates are engaged in these programs 40 hours*53 per week. Due to a conflict between Oregon constitutional provisions and federal law, the Department of Corrections has shut down some of its most successful and productive prison industries programs. This measure modifies existing state prison work program requirements in the Oregon Constitution. The measure does the following: • Permits the state to continue to operate and expand Oregon's most successful prison industries in compliance with federal law. Allows development of additional prison industries programs.
On March 10, 1997, Foundation paid $65,000 for the production and broadcast on Oregon radio stations from March 12 through 14, 1997, a radio message which presented the following script in narrative format:20 I'll bet you thought Oregon prisoners would be working 40 hours a week by now. Back in 1994, that's what voters overwhelmingly told the politicians to do. But the governor and attorney general have said, NO, we're not gonna do*54 it. Attorney General Hardy Myers says the federal government doesn't like the way Oregon pays it's [sic] prisoners. And so, he and the Governor have decided to shut down the program entirely. Some people just don't think criminals should spend much time in jail. They think they can be rehabilitated. they really wanted prisoners to work, they'd just change the way we to [sic] pay them. *286 When Hardy Myers was Speaker of the House, he took credit for changing Oregon's criminal statutes. Those changes resulted in the average convicted murderer spending less than 7 years in jail. That's why Oregon Voters had to step in and take control. We said it loudly and clearly, "Put criminals in jail. Make 'em do their time, and work 'em while they're there." What Oregon voters didn't say was, "Make a bunch of whiney excuses why you can't do what we want done."
Foundation's tax counsel was not asked to review or approve the content of this radio message.
On September 25, 1998, Foundation paid $200,000 for the production and broadcast of four radio messages (in two sets of two)*55 which aired on Oregon radio stations in October 1998. The first set of two radio messages expressly referred to Measure 61, a citizen-initiated measure on the ballot in Oregon's November 3, 1998, general election. The explanatory statement for Measure 61 described it as follows: EXPLANATORY STATEMENT This measure creates a statute that sets minimum sentences for "major crimes," as defined in this measure. In addition, the measure requires the imposition of an additional sentence of one to three years of imprisonment for any offender who is convicted of a "major crime" and who was convicted of one or more "major crimes" within the previous 10 years. The measure requires that a presumed sentence of at least 14 months imprisonment be imposed for "major crimes" committed on or after January 1, 1999. * * * * * * * The mandatory additional sentence is one year if the offender has one previous conviction for one of the specified crimes within that period, two years if the offender has two previous convictions for the specified crimes within that period and three years if the offender has three or more previous convictions for the specified crimes within that period. The mandatory additional sentence*56 for previous convictions may not be reduced for any reason. * * * ESTIMATE OF FINANCIAL IMPACT: The mandatory and presumptive sentences imposed under this measure are estimated to require 4,300 new prison beds by 2006, with direct state expenditures for prison construction and start-up of $470 million by 2006. *287 Direct state expenditures for prison operating costs and debt service are estimated at $21 million in 1999-2000 and $40 million in 2000-2001, growing to $125 million in 2005-2006. * * *
The first radio message referring to Measure 61, broadcast in October 1998, presented the following script in narrative format: Back when John Kitzhaber was Senate President Legislation was passed that resulted in a convicted murderer, given a life sentence, actually serving less than 7 years in jail... They said they didn't have enough jail space. But then came Measure 11.21 It required mandatory sentences for violent criminals with no possibility of early release...and...it required the state to build enough jail space. They said it would cost billions of dollars. But it didn't. And since Measure 11, violent crime in Oregon has gone down. And now Measure*57 61's on the ballot. It requires mandatory sentences for criminals convicted of property crimes. You live in Portland. You get your car stolen or your house burglarized there won't be jail...just probation. If Measure 61 passes, that criminal goes to jail. And they'll have to build enough jail space to keep 'em... There'll be no early release. It's Measure 61. Paid for in the public interest by the Parks Foundation. The citizens, not the politicians, passed Measure 11 putting violent criminals in jail. Up 'till then, a convicted murderer with a life sentence served less than 7 years. They said it would cost billions. But, it didn't. And the crime rate went down. And now ... Measure 61. You live in Portland, you get your car stolen ... your house burglarized ... there won't be jail ... just probation. *288 With Measure 61, that criminal absolutely goes to jail ... and no early release. (Measure 61.) Pd for by the Parks Foundation.
Mr. Clapper provided drafts*58 of the two Measure 61 radio messages to Foundation's tax counsel for his review and approval before their broadcast. With respect to the first message, the tax counsel sent Mr. Clapper a memorandum stating: We have reviewed the text of radio spot M61#1. The Foundation is not permitted to support or oppose any political candidate or any ballot measures. Its role is to "educate" the public about issues of the candidates and the ballot measures. The conclusion of this radio spot close to an endorsement of the ballot measure, but we do not think it goes too far. Nevertheless, you should try to maintain an unbiased posture even though the thrust of the information emphasizes the "positive" aspects of the ballot measure. Let us know if there is any other information you need.
The remaining two Foundation-funded radio messages broadcast in October 1998 both referred to "administrative rules". Also on the ballot for approval in the November 3, 1998, general election was Measure 65, a citizen-initiated measure that would have amended the Oregon*59 Constitution to establish a procedure under which certain administrative rules promulgated by State agencies would be required to be reviewed and approved by the State legislature.
The explanatory statement for Measure 65 described it as follows: EXPLANATORY STATEMENT This measure would amend the Oregon Constitution to create a review and approval process of state agency administrative rules by the Legislative Assembly. Currently, no such process exists. This process is triggered when a petition signed by a specified number of qualified voters is filed with the Secretary of State. Administrative rules are rules and regulations adopted by state agencies, boards and commissions that generally have the full force and effect of law. The number of qualified voters who must sign the petition is equal to two percent of the total number of votes cast for all candidates for Governor *289 at the last gubernatorial election. The petition must specify the administrative rule or rules that the Legislative Assembly is required to review. Upon being notified by the Secretary of State that a petition meeting the requirements of the measure has been filed, the President of the Senate must prepare a bill that*60 would approve the administrative rule or rules specified in the petition. The President of the Senate must then introduce that bill at the next following regular session of the Legislative Assembly. If the petition is filed with the Secretary of State during a regular session, the bill must be introduced at the next following regular session. After the introduction of the bill, the Legislative Assembly may amend the bill to approve only part of a specified rule. If the petition specifies more than one rule, the bill may be amended to approve fewer than all of the specified rules. Any rule or part of a rule that is not approved by the passage of a bill has no further force or effect after the session is adjourned.
The first radio message referring to "administrative rules" presented the following script in narrative format: Right now, without even knowing it, you're being forced to live under laws created not by elected officials but by non-elected government bureaucrats. They're called administrative rules. Here's what happens: The legislature passes a law to keep a watchful eye on growth and tells its hired workforce to carry out that law. So Jack and Bev Stewart turn 90 acres of Polk County*61 brush piles into a horse farm. Because horses are expensive and easily stolen, they want to build a farmhouse so they can be there. But the government bureaucrats say no, we're not gonna let you until you earn $80,00 [sic] off the property. The Stewarts say. We can't do that until we get more horses...the bureaucrats say tough, that's your problem, not ours. When a legislator's asked how government can get away with this he says we never intended for this to happen. So the Stewarts are stuck...all they did was turn 90 acres of noxious weeds into income producing, taxpaying farm acreage. It's called administrative rules...and you're gonna hear a lot more about 'em in the weeks to come. Right now, without even knowing it, you're being forced to live under laws created not by elected officials but by non-elected government bureaucrats. *290 They're called administrative rules. Here's what happens: The Good Sheppard [sic] Church of Clackamas County purchased the only available piece of land in the area to build a new church. It's zoned for farm use. But even though the elected legislature*62 passed a state law allowing churches to build on farmland, the nonelected bureaucrats made up an administrative rule saying, we're not going to let you do it. And it doesn't matter whether the land is any good or not. So in the mean time [sic], the Good Shepherd Church has been denied a building permit on their own land even though state law says it's OK. It's called administrative rules ... and you're gonna hear a lot more about 'em in the weeks to come.
Mr. Clapper also provided drafts of the two radio messages referring to "administrative rules" to Foundation's tax counsel for his review and approval before their broadcast. In response, the tax counsel sent Mr. Clapper a memorandum which in full stated as follows: "We have reviewed the texts of spots labeled M65-1 and M65-2. They appear to comply with the 'public education' purpose of the Parks Foundation. If you have further questions, please contact us."
In the November 5, 1996, general election, Oregon voters approved Measure 40, which granted victims of crime a variety of constitutional rights with respect to the prosecution of criminal defendants. In 1998, however, the Oregon Supreme Court found Measure 40 void in its entirety*63 because it was not passed in compliance with
The measures sought to make the following amendments to the Oregon Constitution: Measure 69 granted victims constitutional rights in criminal prosecutions and juvenile court delinquency proceedings; Measure 70 gave the public, through the prosecutor, the right to demand a jury trial in *291 criminal cases; Measure 71 limited pretrial release of accused persons to protect victims and the public; Measure 72 allowed murder convictions by 11 to 1 jury votes; Measure 73 limited immunity from criminal prosecutions for persons ordered to testify about their conduct; Measure 74 required that the terms of imprisonment announced in court be fully served, with certain exceptions; and Measure 75 banned persons convicted of certain crimes from serving*64 on grand juries and criminal trial juries.
On June 2, 1999, Foundation paid $10,963 for the production and broadcast of two radio messages and the production and publication of a print advertisement in two newspapers. Combined, the radio messages aired 222 times on Oregon radio stations. The first radio message presented the following script in narrative format: District 5 State Representative Jim Hill is one of the very few Republicans in the state house fighting against the victims of crime. 2 years ago, a wide majority of Oregonians voted to get tough on criminals by passing Measure 40. But the liberal state Supreme Court threw it out saying it contained too many subjects. The state house has just voted to split Measure 40 into 8 separate amendments to be reapproved by the voters. Who would be against this? The liberals and criminal defense lawyers. Some Democrats joined with most of the Republicans to support victims' rights . . . very few Republicans didn't. Your district 5 State Representative Jim Hill is one of them. Many victims of crime urged the passage of Measure 40 because they wanted the victims to be treated at least as well as the criminals. But Jim Hill fought us all the way.*65 The Parks Foundation paid for this message because we want you to know what your elected officials really do once they get to Salem.
*292 In addition, on July 23, 1999, Foundation paid $22,048 for the production and broadcast of a third radio message (Communication #823) which referred by name to Measure 11, a ballot measure that had been passed in 1994 enacting a statute setting mandatory minimum sentences for certain violent crimes. Several bills which sought to amend the Measure 11 statute were introduced during the regular session of the Oregon Legislative Assembly in the spring and summer of 1999. The Communication #8 radio message presented the following script in narrative format: Portland Police have just arrested 32-year-old Todd Reed for the gruesome serial murders of*66 3 women. But what about Todd Reed's criminal history? In '81 he was convicted of burglary. In '82, burglary. In '87 convicted of 3 more burglaries. In '92 he was arrested for 3 counts of rape, 2 counts of sodomy, 5 counts of kidnaping, I [sic] count each sex abused [sic] and menacing. After plea-bargaining he got a 17-year sentence. But this was Oregon before Measure 11. He spent 2 years in jail. But if he was under Measure 11, there'd be no early release; he'd still be in jail. The State Senate just voted to allow some violent Measure 11 convicts a 15% reduction in prison time. Now, who would do that? From the Portland area, Senators Kate Brown, Ginny Burdick and Frank Shields. And the one most responsible, Neil Bryant of Bend. The Parks Foundation paid for this because we want you to know what the politicians really do once they get to Salem.
Drafts of the three radio messages Foundation funded in 1999 were provided to Foundation's tax counsel for his review and approval, but there is no evidence that he provided any written response with respect to the content of the messages.
Foundation's tax counsel sent*67 Mr. Parks a letter dated October 14, 1999. At that time, Foundation was the subject of an investigation by the Oregon attorney general concerning, inter alia, its expenditures for the broadcast of radio advertisements. The investigation had commenced sometime *293 before March 12, 1998.24 The letter referenced the Oregon attorney general's investigation and the poor prospects of reaching any mutually agreeable settlement with that office. The letter went on to specifically address Foundation's practice of sponsoring "information ads on radio and in newspapers" in the excerpts which follow. Sponsoring your own public information ads has produced the most ardent response from the Attorney General * * * . The law prohibits a private foundation form engaging in any activities intended to "affect the outcome of an election," in other words, from lobbying. There are two forms of political activity that meet the test. They should be clearly distinguished in your mind when the ads are being produced and circulated because each has a slightly difference compliance standard. The two forms of lobbying are called "direct lobbying" and "grass roots lobbying". Until this year [1999], most of your activities have focused on the initiative process. The law takes the view that the voters are the legislature when deciding a [sic] initiative ballot issue. Thus, communicating with the voters about an initiative issue is direct lobbying, rather than grass roots lobbying. The requirement for urging a particular vote or to contact a legislator is not required. This is why the Attorney General is so adamant about condemning your activities; they believe you are engaging in direct lobbying: you refer to a specific bill or act (even when you don't), and you are expressing a point of view. * * * a simple exception to these lobbying rules [exists] which permits the expression of a point of view if the message is "educational". This is where the "gray area" comes in, and it is the arena in which the main battle with the Attorney General will be waged. It is not possible to express a "general rule" for you to follow in your political efforts. Instead, we urge you to simply stay focused on the facts. Do not succumb to emotion or generalizations*69 of "good" or "bad" or "conservative" or "liberal." It is certainly acceptable to use humor, sarcasm and imagery as long as they do not obscure the factual basis of your message.
*294 In 2000 Foundation expended $341,062 to produce and broadcast two radio messages. The messages were broadcast before the Oregon general election held on November 7, 2000. Appearing on the ballot of that election was Measure 8, an initiative measure. The explanatory statement for Measure 8 described it as follows: Ballot Measure 8 would amend the Oregon Constitution by linking the rate of growth of state government spending to the rate of growth of personal income in the state. The measure would limit all state spending, regardless of the source of the funds, to no more than 15*70 percent of total personal income of Oregonians earned in the two calendar years immediately preceding the budget period (biennium). If the state collects revenues in excess of the limit, the measure would require that those excess revenues be distributed to Oregon taxpayers in proportion to the income taxes they paid in the biennium. Excluded from this distribution are earnings from dedicated investment funds, such as retirement funds or the Common School Fund. The Legislature could vote to increase spending beyond the limit, but only if the Governor specifically declares an emergency, and three-fourths of the elected members of both the House and the Senate vote for the increased level of spending. The limit covers state spending from all sources of funds, such as taxes, fees, federal funds, and investment earnings. The measure would exclude from the limit proceeds from state-issued bonds, although it does include the funds appropriated to repay those bonds. For comparison, the state has recently experienced a spending level of about 18 percent of personal income. The estimated impact of the measure on the 2001-2003 state budget would be to limit expenditures to an amount $5.7 billion*71 less than the projected spending of $32.4 billion. The measure limits state spending. The measure does not cut state taxes, nor does it direct the Legislature or Governor how state funds are spent within the new limit.
The first of the two radio messages, broadcast sometime before late August 2000, presented the following script in narrative format: Is Oregon State government really growing nearly 3 times faster than the personal income of those who pay its bills? Oregonians will soon be asked if they want to slow down the growth of their State government. Here are the facts. From 1989 to 91 State government grew by 21%, citizen income grew less than 9%. In 93 State income up 20%, citizens' *295 income just 11%. In 95 State incomes up another 23%, private pay up less than 11%. And in 97 the State income was up 14% and private pay just 8%. So what all this means is that over the last 10 years the State increased its income by more than 130%, while private pay increased less than 50%. Our Tax dollars to State government have increased nearly 3 times faster than the personal income of its own citizens. And those are the State's own figures. Paid for by the Parks Foundation.
On August 25, 2000, Oregon's*72 largest newspaper (by circulation) published an article addressing the claims made in the radio message. Summary: A radio spot paid for by the Parks Foundation says the state tax has grown 3 times faster than residents' personal income.26 Conservative businessman Loren Parks has thrown the first punch in this year's ballot fight about taxes and government spending, launching a statewide radio ad that claims Oregon's budget has grown three times faster than personal income in the past decade. But the 60-second spot, paid for by the Parks Foundation, fails to account for inflation, population growth or the decade-long shift in school finance from local property taxes to the state budget. *296 Considering those factors, growth in state spending has actually been slower than personal income growth in the 1990s.
Specifically, with respect to the radio message's claim that over the past 10 years Oregon State revenues had risen by more than 130% while personal income had risen by only 50%, the article states: The comparison is flawed, however, because one figure--personal income--is adjusted for population, while the other--spending--is not. Without adjusting for population, personal income grew by 87 percent in the same period, which is closer to the 130 percent rise in the budget. And by focusing on*74 the general fund, the ad gives voters a misleading picture of * * * [Measure 8], which limits total state spending, not just the general fund. The state's "all funds" budget, which includes federal funds, the gas tax and licenses and other user fees, increased 108 percent in the past 10 years. Accounting for the shift in school funding by adding in all school property taxes, adjusting for population growth and factoring in inflation turns the claim in the Parks' radio ad on its head. Adjusted figures show that per capita state spending increased only 4 percent over the last decade, far less than the 18 percent increase in per capita personal income.
On August 24, 2000, the Oregon Department of Justice, Charitable Activities Section, filed a lawsuit against Foundation, alleging that Foundation had made expenditures from 1993 through 2000 that constituted taxable expenditures under
After the filing of the foregoing lawsuit, Foundation arranged for the production and broadcast of the second radio message at issue for 2000. The message presented the following script in narrative format: A few weeks ago, the Parks Foundation revealed that, over the last 10 years, Oregon government income has grown by 130%, nearly 3 times faster than the personal income of citizen's who pay for it. The state government didn't like what we said. They filed a lawsuit against us. But, like it or not, the general fund budget has gone from $4 to $10 billion. And where's that money gone? A big part of it goes to the Oregon Health plan that just*76 paid a quarter million dollars for a convicted child molester from Mexico to receive a bone marrow transplant ... . And 2 brain surgeries for an out of state man... Gall bladder surgery for an out of state woman... And 2 knee replacements for a skier who lives off a trust fund but said he had no income. The state government is using taxpayers' money to intimidate us from revealing this kind of information. Isn't that what Richard Nixon did when he used the IRS to go after his political enemies? Paid for by the Parks Foundation.
Drafts of both radio messages were provided to Foundation's tax counsel for his review and approval, but there is no evidence that he provided a written response with respect to the content of the messages.
Neither Foundation nor Mr. Parks filed a Form 4720,
In a notice of deficiency issued to Foundation on December 22, 2006, respondent determined that Foundation's expenditures for radio messages of $65,000, $200,000, $33,011, and $341,062 for its 1997-2000 taxable years, respectively, were taxable expenditures under
Provisions exempting charitable organizations from taxation have been included in every income tax act since the adoption of the
Consequently, in
Congress also concluded that a different enforcement mechanism--the aforementioned excise taxes--was appropriate for private foundations. Whereas the principal enforcement mechanism for tax-exempt organizations at the time of enactment of the 1969 Act had been revocation of tax-exempt status (and the attendant forfeiture of eligibility to receive tax-deductible contributions), Congress believed that loss of exemption was an ineffective sanction in the case of private foundations. Instead, Congress chose to impose excise taxes on expenditures by private foundations that it determined should be proscribed, reasoning that such an approach would be both more effective and more proportionate to the infraction than loss of tax-exempt status. With respect to the excise taxes, the Finance Committee report states: The committee has concluded that more effective limitations [than loss of tax exemption and denial of charitable contribution deduction status] must be placed on the extent to which tax-deductible and tax-exempt funds can be dispensed by private persons and that these limitations must involve more effective sanctions. Accordingly, the committee has determined that a tax should*82 be imposed upon expenditures by private foundations for activities that should not be carried on by exempt organizations (such as lobbying, electioneering, and "grass roots" campaigning). * * *
More severe "second tier" taxes are imposed by
Respondent determined that Foundation's payments for the production and broadcast of the radio messages were taxable expenditures.36*86 He further determined that Foundation and Mr. Parks were both liable for first and second tier excise taxes on the expenditures. Petitioners argue that they are not liable for excise taxes because the expenditures for the radio messages were not taxable expenditures. They also argue that
We begin by considering the application of each excise tax.
Respondent determined excise tax deficiencies under
Foundation bears the burden of proving the expenditures were not taxable expenditures.
Under (1) any attempt to influence any legislation through an attempt to affect the opinion of the general public or any segment thereof, and (2) any attempt to influence legislation through communication with any member or employee of a legislative body, or with any other government official or employee who may participate in the formulation of the legislation (except technical advice or assistance provided to a governmental body or to a committee or other subdivision thereof in response to a written request by such body or subdivision, as the case may be),
A "direct lobbying communication" is any attempt to influence any legislation through communication with: (A) Any member or employee of a legislative body; or (B) Any government official or employee (other than a member or employee of a legislative body) who may participate in the formulation of the legislation, but only if the principal purpose of the communication is to influence legislation.
The regulations treat communications with the general public regarding ballot measures as "direct lobbying communications".*91 (iii) Special rule for referenda, ballot initiatives or similar procedures.--Solely for purposes of this In the case of a referendum, ballot initiative, constitutional amendment, or other measure that is placed on the ballot by petitions signed by a required number or percentage of voters, an item becomes "specific legislation" when the petition is first circulated among voters for signature.*92
*307 Under the regulations, a communication is not a "direct lobbying communication" if it constitutes "engaging in nonpartisan analysis, study or research and making available to the*95 general public or a segment or members thereof or to governmental bodies, officials, or employees the results of such work." For purposes of
Petitioners argue that, except*96 for the two radio messages that specifically refer to Measure 61 by name, the radio messages are not direct lobbying communications because they do not "refer to" the ballot measures--in that they do not mention any ballot measure by name.42 Respondent argues that a communication can "refer to" a ballot measure without identifying it by name. We agree with respondent.
*308 The regulations do not provide a definition of the term "refers to" but instead elucidate its meaning through*97 illustrative examples. A pamphlet distributed by organization Y states that the "President's plan for a drug-free America," which will establish a drug control program, should be passed. The pamphlet encourages readers to "write or call your senators and representatives and tell them to vote for the President's plan." No legislative proposal formally bears the name "President's plan for a drug-free America," but that and similar terms have been widely used in connection with specific legislation pending in Congress that was initially proposed by the President. Thus, the pamphlet refers to specific legislation, reflects a view on the legislation, and encourages readers to take action with respect to the legislation. The pamphlet is a grass roots lobbying communication. A pamphlet distributed by organization Z discusses the dangers of drugs and encourages the public to send their legislators a coupon, printed with the statement "I support a drug-free*98 America." The term "drug-free America" is not widely identified with any of the many specific pending legislative proposals regarding drug issues. The pamphlet does not refer to any of the numerous pending legislative proposals, nor does the organization support or oppose a specific legislative proposal. The pamphlet is not a grass roots lobbying communication. A nonmembership organization includes in its newsletter an article about problems with the use of pesticide X that states in part: "Legislation that is pending in Congress would prohibit the use of this very dangerous pesticide. Fortunately, the legislation will probably be passed. Write your congressional representatives about this important issue." This is a grass roots lobbying communication that refers to and reflects a view on specific legislation and that encourages recipients to take action with respect to that legislation.
*309 On the basis of the principles illustrated*99 in the regulatory examples, we hold that a communication "refers to" a ballot measure within the meaning of the regulations if it either refers to the measure by name or, without naming it, employs terms widely used in connection with the measure or describes the content or effect of the measure.
The lone radio message Parks Foundation funded in 1997 refers to Oregon voters having told "the politicians" in 1994 that prisoners ought to be working 40 hours a week and then describes Oregon's Governor and attorney general as having disregarded the voters' intent by shutting down the prisoner work program. The message reiterates that Oregon voters had insisted that prison inmates should work, by virtue of the earlier vote.
In referring to prisoners working and the shutdown of prisoner work programs, the message employed terms "widely used in connection with" Measure 49.
Measures 61 and*101 65 were on the ballot in Oregon's November 3, 1998, general election. Measure 61 would have enacted statutory provisions imposing minimum sentences for certain "major crimes" and mandatory additional sentences for certain repeat offenders. Measure 65 would have amended the Oregon Constitution to require Oregon Legislative Assembly approval of administrative rules adopted by State agencies when those rules are challenged in a petition signed by a specified number of qualified voters.
Foundation funded two radio messages that referred to Measure 61 by name and were broadcast in the month before the election. Each message "reflects a view on" Measure 61 because each posited that mandatory prison sentences for the crimes covered by Measure 61 would result in a reduction in crime in the same manner as had occurred after passage of an earlier measure (Measure 11) that established mandatory prison sentences for violent crimes. Accordingly, each of these radio messages "refers to" and "reflects a view on" Measure 61 within the meaning of the regulations. Each is thus a "direct lobbying communication" unless it constitutes "nonpartisan analysis, study, or research".
Foundation also paid for the*102 production and broadcast of two additional radio messages in 1998, which also aired during the month before the November 3, 1998, general election, the subject of which was "administrative rules". Each message cites an example of a seemingly arbitrary and nonsensical government requirement imposed by "non-elected government bureaucrats" and equates it with "administrative rules" which--each message goes on to say--"you're gonna hear a lot more about * * * in the weeks to come." As noted, the radio messages were broadcast just weeks before the election where Measure 65 was on the ballot, and the explanatory statement for it referred extensively to administrative rules as the focus of the measure. On this record, we are persuaded that the use of the term "administrative rules" in the explanatory statement for Measure 65 demonstrates *311 that the term had been widely used in connection with Measure 65 at the time the radio messages were broadcast. Petitioners have offered no evidence to support a contrary conclusion. Consequently, we find that the term "administrative rules" was "widely used in connection with" Measure 65. Therefore each message "refers to" Measure 65 within the meaning of*103 the regulations. Moreover, each message "reflects a view on" Measure 65 because each alleges an instance where an administrative rule was both unwarranted and contrary to legislative intent, strongly suggesting the desirability of the greater legislative oversight provided for in Measure 65. Therefore each radio message is a "direct lobbying communication" unless it constitutes "nonpartisan analysis, study, or research".
Measures 69 through 75 were on the ballot in Oregon's November 2, 1999, statewide special election. The measures were placed on the ballot by action of the Oregon Legislative Assembly after a previously approved ballot measure--Measure 40, which proposed a panoply of changes to the Oregon Constitution affecting the criminal justice system, including constitutional rights for victims of crime--was found invalid by the Oregon Supreme Court because the ballot measure included multiple constitutional amendments. The Oregon Legislative Assembly responded by proposing the contents of Measure 40 as separate constitutional amendments, seven of which were denominated Measures 69 through 75, and referring them to the voters for reapproval.
On June 2, 1999, Foundation funded*104 the production and broadcast of two radio messages. The messages were identical except in their reference to a specific member of the Oregon legislature. They described the passage of Measure 40, its invalidation by the Oregon Supreme Court, and the legislature's subsequent splitting of Measure 40 into separate ballot measures to be reapproved by the electorate. Because the foregoing describes the content and effect of Measures 69 through 75 (albeit without naming them), each radio message "refers to" Measures 69 through 75 within the meaning of the regulations.
On the ballot for Oregon's general election on November 7, 2000, was Measure 8, which sought to amend*105 the Oregon Constitution by limiting biennial State appropriations to no more than 15% of total personal income for the State in the two calendar years immediately preceding the budget period. During 2000, before the vote Foundation paid $341,062 for the production and broadcast of two radio messages.
The first message stated: Is Oregon State government really growing nearly 3 times faster than the personal income of those who pay its bills? Oregonians will soon be asked if they want to slow down the growth of their State government.
The explanatory statement for Measure 8 described the measure as "linking the rate of growth of state government spending to the rate of growth of personal income in the state." Given the radio message's reference to the rate of growth of Oregon State government revenues as compared to the rate of growth of personal income, coupled with its reference to the fact that Oregonians would "soon be asked" whether they wanted to slow down the growth of their*106 State government, we conclude that it "refers to" Measure 8 within the meaning of the regulations.44 It both employs terms *313 "widely used in connection with"45 Measure 8 and describes its effect.
The message's contention that State revenues had been growing at nearly three times the rate of growth*107 of personal income over the past decade--a growth rate that any reasonable observer would likely think unsustainable--constitutes near-explicit support for the idea that the growth of State expenditures needed to be reigned in by some effective cap, as Measure 8 would have done.
Consequently, we find that the message also "reflects a view on" Measure 8 within the meaning of the regulations. It is therefore a "direct lobbying communication" unless it constitutes "nonpartisan analysis, study, or research".
The second radio message also asserted, like the first, that Oregon State government had grown three times faster than personal income over the past 10 years. But it otherwise differs from the first radio message in three respects. First, the message asserts that the State government had filed a lawsuit against Foundation in retaliation for its broadcast of the disclosures about State government growth in the first radio message. Second, it cited several examples of the seemingly inappropriate expenditure of State funds for the health care of nonresidents and wealthy individuals and cited as another example the lawsuit, characterized as the State's use of taxpayer money "to intimidate*108 us from revealing this kind of information." Finally, in contrast to the first radio message, the second did not state that Oregon voters "will soon be asked" whether they wanted to slow down the growth of their State government.
The absence of the "will soon be asked" language tips the balance against a finding that the second radio message is a "direct lobbying communication" within the meaning of the *314 regulations.46 While the second message, in comparing the rates of growth of State revenues and personal income, employs "terms widely used in connection with" Measure 8, the message is more accurately characterized as direct criticism of the Oregon State government without a suggestion of a remedy. The message's central thrust is no longer advocacy for Measure 8 but instead an attack on the Oregon State government as wasteful and as retaliatory with respect to its critics.
Foundation argues that even if the radio messages refer to and reflect a view on the various ballot measures, its expenditures for the messages were not "direct lobbying communications" or attempts to influence legislation under
The exception for "nonpartisan analysis, study, or research" requires in the first instance that there have been
More fundamentally, "nonpartisan analysis, study, or research" must be an independent and objective exposition of a particular subject matter. For purposes of
As noted, the regulations provide that "nonpartisan analysis, study, or research" includes "any activity that is 'educational' within the meaning of
*316 The Commissioner has published the criteria he uses for determining whether the "full and fair exposition" requirement is satisfied such that advocacy will be treated as "educational" within the meaning of
1 The presentation of viewpoints or positions unsupported by facts is a significant portion of the organization's communications. 2 The facts that purport to support the viewpoints or positions are distorted. 3 The organization's presentations make substantial use of inflammatory and disparaging terms and express conclusions more on the basis of strong emotional feelings than of objective evaluations. 4 The approach used in the organization's presentations is not aimed at developing an understanding on the part of the intended audience or *317 readership because it does not consider their background or training in the subject matter.
Petitioners contend that the radio messages satisfy the criteria of*114
The 1997 radio message contains multiple factors that under
Second, the message makes substantial use of inflammatory language and disparaging terms and reaches its conclusion on the basis of strong feelings rather than objective evaluations.*117
We likewise find that the two 1998 radio messages that refer to Measure 61 are not "educational". Each distorted facts in suggesting that a statute providing for certain *319 mandatory minimum sentences and certain additional sentences for repeat offenders could be implemented without significant cost. The first of the two messages contained the following statement concerning an earlier enactment (Measure 11) requiring minimum sentences: Back when John Kitzhaber was Senate President Legislation was passed that*118 resulted in a convicted murderer, given a life sentence, actually serving less than 7 years in jail... They said they didn't have enough jail space. But then came Measure 11. It required mandatory sentences for violent criminals with no possibility of early release...and...it required the state to build enough jail space. They said it would cost billions of dollars. But it didn't. * * * * And now Measure 61's on the ballot. It requires mandatory sentences for criminals convicted of property crimes. * * * * If Measure 61 passes, that criminal goes to jail. And they'll have to build enough jail space to keep 'em... There'll be no early release. The citizens, not the politicians, passed Measure 11 putting violent criminals in jail. * * * * They said it would cost billions. But, it didn't. And the crime rate went down. And now ... Measure 61. * * * * With Measure 61, that criminal absolutely goes to jail ... and no early release.
In asserting that past claims about the financial impact of mandatory minimum prison sentences were unfounded, and thereby implying that cost is an inconsequential factor in deciding whether to enact further mandatory*119 minimum sentences, both messages distorted the available facts concerning Measure 61. The financial impact statement for *320 Measure 61 estimated that the mandatory and presumptive sentences imposed by the measure would require 4,300 new prison beds by 2006, with additional direct State expenditures for prison construction and startup of $470 million by 2006. Direct State expenditures for prison operating costs and debt service were estimated at $21 million in the first two years after passage and $40 million in the following two years. By omitting and seeking to discredit these public estimates, the radio messages presented distortions of the facts in support of the position they advocated.
The two radio messages broadcast in 1998 that refer to Measure 65 also exhibit factors identified in
The two radio messages broadcast in 1999 that refer to Measures 69 through 75 are not "educational" because at least two of the criteria in
The first radio message broadcast in 2000 that refers to Measure 8 asserted that the size of State government (as measured by revenues) had increased nearly three*122 times faster than personal income over the preceding 10 years. We have already concluded that the message's statement that Oregon voters "would soon be asked" if they wanted to slow down the growth of their State government was a reference to Measure 8, which would have limited state spending to 15% of personal income. A contemporaneous newspaper article concerning this radio message asserted that the radio message's statistics were flawed and misleading, insofar as they suggested that the Oregon State government was growing nearly three times faster than personal income. The article contended that the statistics had at least three shortcomings: (1) the use of personal income figures that were adjusted for population when the State spending figures were not; (2) the use of the growth rate of the State's general fund spending, rather than that of "all funds" spending, which rose 108% over the 10-year period as compared to 130% for *322 the general fund; and (3) a failure to account for the shift in spending on education from local governments to the State government resulting from a 1990 citizen-initiated measure that limited local property taxes. The article concluded by asserting that*123 when adjustments were made to account for the foregoing flaws plus inflation, the rate of growth of State government (as measured by per capita State spending) was
Relying on the newspaper article, respondent contends that the radio message contains two of the factors in
Respondent's reliance on a newspaper article to demonstrate factual distortions in the 2000 radio messages stands in contrast to the benchmarks used for assessing factual distortions in the radio messages at issue in earlier years; namely, the explanatory statements. Those statements were the consensus product of a committee composed of persons favoring and opposing the ballot measure described. As previously discussed, we conclude that such a drafting process provided reasonable assurance of the explanatory statements' impartiality. By contrast, the newspaper article is itself a piece*124 of advocacy--quite clearly making the case against the conclusions urged by the radio message. Respondent presents as evidence of the radio message's distorted facts the newspaper article's assertion that the radio message's comparison of the rate of growth of personal income with the rate of growth of State spending was "flawed" because the former is adjusted for population and the latter is not. On this record, we are unable to conclude that the radio message presented distorted facts. It has not been shown that the actual figures for the respective growths of personal income and State spending cited in the radio message were distorted. Instead, the claim of distortion is that the straightforward comparison of those two growth rates is "flawed" and, presumably, misleading because one is adjusted for population and the other is not. With better evidence to support it, respondent's contention might raise a *323 close question regarding where to draw the line between permissible advocacy and factual distortion. However, given the dubious evidence respondent has proffered--a newspaper article that is only in the record for lack of a hearsay objection, the author of which cannot be cross-examined--we*125 are not persuaded that the radio message presented distorted facts.
Second, respondent contends, again relying on the newspaper article, that the radio message also violates factor 4 of
In Petitioner apparently reads the revenue procedure [
Because the first 2000 radio message provided facts and statistics to support its viewpoint that mandatory limits should be imposed on State spending, it has "provide[d] a factual foundation for the viewpoint or position being advocated",
Respondent argues in the alternative that the expenditures for the radio messages are taxable expenditures under
We have already found, in considering petitioners' claim that the radio messages were "nonpartisan analysis, study, or research", that all but three of them were not "educational" within the meaning of
Communication #8 aired when several bills were before the Oregon Legislative Assembly in the spring and summer of 1999 that would have amended Measure 11, a citizen-initiated ballot measure passed in 1994 that established mandatory minimum sentences for certain crimes.
Communication #8 described a man recently arrested for "the gruesome serial murders of 3 women", documented his lengthy criminal history preceding that arrest, and noted the short prison sentence the man served for his past crimes. The message then contended that the man would still have been in jail had the mandatory minimum sentences of Measure 11 been in effect at the time and noted that the "State senate just voted to allow some violent Measure 11 convicts a 15% reduction in prison time." Asking rhetorically "Now, who would do that?", it identified four senators who had so voted.
Communication #8 contains two factors from
The second 2000 radio message repeated the claim of the first that State government revenue had grown nearly three *327 times faster than personal income but also made a new and different assertion; namely, that the State of Oregon had filed a lawsuit against Foundation in retaliation for its disclosures in the first 2000 radio message about the growth rate of State revenue. In making*132 the assertion about retaliation, the radio message did not disclose that Foundation had been under audit by the Oregon attorney general's office concerning its expenditures for radio advertisements for (at a minimum) more than two years before the first 2000 radio message was broadcast--a material fact of substantial relevance to the claim of retaliation. Petitioners have offered no additional evidence to support the radio message's claim about retaliation, and the evidence in the record--concerning the length and seriousness of the attorney general's investigation and the unlikely prospects of settlement--tends to rebut the claim of retaliation. We conclude that the failure to disclose the investigation, given the material nature of that fact to the claim of retaliation, rendered the radio message's assertion concerning the retaliatory nature of the lawsuit a factual distortion.
Foundation's expenditures for all of the radio messages during its years at issue, except Communication #8 and the first and second 2000 radio messages, were taxable expenditures under
Respondent determined excise tax deficiencies under
*329 We note as a preliminary matter that
(vi) Advice of counsel.--If a foundation manager, after full disclosure of the factual situation to legal counsel * * * , relies on the advice of such counsel expressed in a reasoned written legal opinion that an expenditure is not a taxable expenditure under
The parties stipulated that drafts of the radio messages created after November 30, 1997, were provided to Foundation's tax counsel for his review and approval. However, the record*137 contains only two written responses from the attorney that address whether specific radio messages would give rise to a taxable expenditure, and a letter from him that could be construed as providing guidelines for taxable expenditures.
The first written response that opined that a specific radio message would not give rise to a taxable expenditure concerned the first 1998 radio message that referred to Measure *330 61. The response is reproduced in full in our findings. As pertinent here, the response states: We have reviewed the text of radio spot M61#1. The Foundation is not permitted to support or oppose any political candidate or any ballot measures. * * * The conclusion of this radio spot is close to an endorsement of the ballot measure, but we do not think it goes too far. * * *
The second written response that opined that a specific radio message would not give rise to a taxable expenditure concerned the two 1998 radio messages that we have concluded referred to Measure 65. That written response stated in full: "We have reviewed the texts of spots labeled M65-1 and M65-2. They appear to comply with the 'public education' purpose of the Parks Foundation. If you have further questions, please contact us." This statement "does nothing more than recite the facts and express a conclusion",
Finally, an October 14, 1999, letter from Foundation's tax counsel to Mr. Parks advised him of the exception for lobbying communications that express a point of view so long as the message is "educational". As pertinent to the "educational" *331 exception for lobbying communications, the letter stated: It is not possible to express a "general rule" for you to follow in your political efforts. Instead, we urge you to simply stay focused on the facts. Do not succumb to emotion or generalizations of 'good' or 'bad' or 'conservative' or 'liberal.' It is certainly acceptable to use humor, sarcasm and imagery as long as they do not obscure the factual basis of your message.
To the extent this October 14, 1999, letter may constitute guidelines as contemplated in the regulations, it could provide a basis for relief only with respect to the expenditures for the two radio messages prepared and broadcast in 2000.56*140 The expenditures for the 1999 radio messages were made in June and July of 1999; thus Mr. Parks could not have relied on this letter in making those expenditures or any earlier ones.
Respondent contends that the letter does not constitute advisory guidelines for purposes of the regulation because it does not cite specified language from the regulations and
The question remains whether Mr. Parks in fact relied on Foundation's tax counsel's advice; that is, whether the second radio message he approved in 2000 adhered to the letter's guidelines so that Mr. Parks' reliance could be said to have been based on that adherence.
As previously noted, the second 2000 radio message repeated the claim of the first about the growth rate of the Oregon State government but made the additional claim that the State*142 government had filed a lawsuit against Foundation in retaliation for the disclosures about the growth rate that Foundation made in the first radio message. Mr. Parks necessarily knew when he agreed to the expenditure for the second message that the assertion about the lawsuit's having been filed as retaliation was a factual distortion. At that time, he knew--by virtue of the October 14, 1999, letter to him from Foundation's tax counsel--that Foundation's funding of radio advertisements had been under active investigation by State authorities and was unlikely to be resolved by settlement, well before the broadcast of the first radio message in 2000. Thus Mr. Parks knew that the second message did not adhere to the letter's guideline to "stay focused on the facts"; he knew that the second message contained a significant distortion of fact. Consequently, he did not agree to the expenditure in reliance on legal counsel's advice that conforming the expenditure to stated guidelines would prevent it from being held to be a taxable expenditure. As a result, Mr. Parks has not established that his agreement to the expenditure for the second radio message in 2000 was based on advice of counsel*143 as described in
*333 Mr. Parks has offered no evidence of any other written legal opinion addressing the radio messages at issue. Therefore, he has failed to establish, as stated in the parties' stipulations, that he agreed to the taxable expenditures on advice of counsel as described in
Respondent also determined excise tax deficiencies under
"Correction" of a taxable expenditure*144 occurs when all or part of the expenditure is recovered and, if full recovery is not possible, corrective action prescribed by the Secretary is taken.
The "taxable period" for Foundation ended on December 22, 2006, when respondent mailed a notice of deficiency to it determining deficiencies under
Petitioners contend that they should not be held liable for the second tier excise taxes (both Foundation's under
*145 Because Foundation's taxable expenditures were not corrected within the "taxable period" provided in
Respondent determined excise tax deficiencies under
Respondent's revenue agent made a formal request that Mr. Parks correct the taxable expenditures at issue in a letter sent to Foundation's tax counsel on October 16, 2002. Foundation's tax counsel replied with a letter on November 11, 2002, informing the revenue agent that Mr. Parks refused to make the requested correction. Accordingly, we sustain respondent's deficiency*146 determinations under
Because we find petitioners are liable for excise taxes pursuant to
Petitioners, relying on the U.S. Supreme Court's decision in
Petitioners also argue that the implementing regulations fail to pass muster under
Petitioners' arguments are misplaced.
*337 The Supreme Court disagreed, reasoning that "[b]oth tax exemptions and tax-deductibility are a form of subsidy that is administered through the tax system" and that Congress may, consistent with the Congress is not required by the
The Court also rejected the proposition that Congress' decision to deny a subsidy for lobbying by
It follows that if Congress may, consistent with the
Thus, the excise taxes at issue readily pass rational basis scrutiny.62*154 As previously noted, Congress chose to impose excise taxes on private foundations because it concluded that such taxes would be a more effective and proportionate sanction (as compared to revocation of tax-exempt status) for discouraging private foundation expenditures of tax-exempt and tax-deductible funds for lobbying or other nonexempt purposes.
Moreover, as with the taxpayer in
Apparently recognizing the difficulties presented by
There are significant distinctions between
*341 On the other hand, both
In any event, even if one believed that
Petitioners also argue that the regulations defining a direct lobbying communication as one that "refers to" specific legislation,
The vagueness doctrine is grounded in the
Petitioners' reliance on [A]lthough the
As we concluded earlier, the regulatory examples cited above that the Secretary has promulgated to elucidate the meaning of "refers to" extend the phrase's reach beyond communications that actually cite legislation (or a ballot measure)*161 by name and extend the phrase to cover communications that employ terms widely used in connection with the legislation or that reference its general content or effect. Under
While undoubtedly the regulatory definition of "refers to" at issue here may give rise to more disputes at the margins65 than would be the case with a regulation that confined "refers to" to instances where legislation is cited by name, we conclude that any such imprecision does not raise constitutional vagueness problems under the lesser standard for subsidy allocation countenanced in
We conclude, and hold, that Foundation's expenditures for the production and broadcast of the radio messages at issue, except Communication #8 and the first and second radio messages in 2000, were attempts to influence legislation and thus taxable expenditures under
To reflect the foregoing,
1. All section references are to the Internal Revenue Code of 1986 as in effect for the years at issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. All dollar amounts are rounded to the nearest dollar.↩
2. The parties stipulated that the $1,979 excise tax deficiency determined under
3. The predecessor's name was changed to Parks Foundation in 1987 and the Oregon-chartered entity was merged into a newly created Nevada nonprofit corporation in 2003.↩
4. Mr. Parks contributed $1 million to Foundation in its taxable year ended November 30, 1999, and $200,000 in its taxable year ended November 30, 2000.↩
5. For Federal tax purposes, Foundation used a taxable year ending November 30. Hereinafter, references to a specified year or taxable year of Foundation mean the 12-month period ended November 30 for the specified year. In the case of Mr. Parks, references to a specified year or taxable year are to the calendar year.↩
6. Some portion of the 1999 expenditure was also for newspaper advertisements, as discussed
7. Foundation made the $65,000 expenditure in 1997 by means of a check made out to the "Are you having Trouble Hearing What We're Saying Committee". As the parties have stipulated that this $65,000 was used by Mr. Clapper or the Clapper Agency to produce the radio message and to purchase broadcasting air time from radio stations during 1997, the fact that a conduit was apparently employed to effect payment is not material.
8. The parties have stipulated various excerpts from the voters pamphlets prepared with respect to the ballot measures that respondent contends were the subject of the radio messages at issue. The parties' stipulations do not provide an explanation, however, of the statutorily prescribed procedures under which the contents of the voters pamphlets were prepared. In the Court's judgment, knowledge of these procedures is indispensable to determining the relevance and probative weight to be given the voters pamphlet excerpts that have been stipulated. Consequently, we have taken judicial notice of the Oregon statutes that governed the ballot measures at issue, including the statutorily prescribed procedures for developing the information that appeared in the voters pamphlets. The findings in this section are based on such judicial notice in addition to the parties' stipulations.
9. For the elections at issue which occurred during 1997, 1998, and 1999, the secretary of state was required to mail the voters pamphlets no less than 15 days before the election.
10. A ballot title consisted of a caption that reasonably identified the subject matter of the measure; simple and understandable statements that described, respectively, the result if the measure were approved or rejected; and a concise and impartial summary of the measure and its major effect.
11. During the years in issue, the financial impact statement was required to be jointly prepared by the Oregon secretary of state, the state treasurer, the director of the Oregon Department of Administrative Services, and the director of the Department of Revenue.
12. The current statute is found at
13. The current statute is found at
15. The current statute is found at
16. The current statute is found at
18. Draft ballot titles were subject to similar procedures.
19. In contrast to the explanatory statements for the other measures considered in this Opinion, which were prepared by five-citizen committees pursuant to
20. The scripts of all radio messages have been reproduced herein as presented in the parties' stipulations, with apparent errors noted.↩
21. Measure 11 was passed by Oregon voters in 1994. It established mandatory minimum prison sentences for violent crimes.↩
22. A copy of the print advertisement is not in the record, but the parties stipulated that it was similar to the radio messages. Consequently our findings with respect to the expenditure for the radio messages apply equally to any portion devoted to the print advertisements.↩
23. The parties refer to this radio message as Communication #8, and we shall as well.↩
24. March 12, 1998, is the date of the earliest email in the record from a financial investigator from the Oregon Department of Justice to Foundation's tax counsel. The subject of the email concerned the investigator's efforts to obtain the scripts of radio and newspaper advertisements prepared for Foundation by Mr. Clapper, and the email reflected efforts to obtain the scripts that had preceded the date of the email.↩
25. The newspaper article is a stipulated exhibit, and the parties stipulated its authenticity. The parties stipulated that either had the right to object to the admission of any stipulated exhibit "on the grounds of relevancy and materiality, but not on other grounds unless expressly reserved herein." In the stipulations, petitioners reserved an objection to the article on the basis of "evidentiary relevance" alone.
While statements in the article are hearsay, petitioners have not objected on that ground and have therefore waived any such objection.
26. The article also reported that Mr. Clapper had advised in an interview that the figures used in the radio message for State revenue and personal income were from Oregon Tax Research, a think tank.↩
27. The revenue agent proposed that, under the circumstances, correction could be accomplished by Mr. Parks' reimbursing Foundation for the taxable expenditures.↩
28. The notice of deficiency determined that Foundation's excise tax liability under
29.
30. During the years at issue (and currently),
31. As will be discussed in greater depth hereinafter, the provisions applicable to private foundations further define what constitutes an "attempt to influence legislation".
32. The House version of the legislation would have imposed an excise tax on a private foundation equal to 100% of the prohibited expenditure and an excise tax equal to 50% of the prohibited expenditure on the foundation manager. The two-tiered excise taxes in current law originated in the Senate version and were adopted in the conference version of the legislation.
33. The rate of tax imposed by
34. The rate of tax imposed by
35. "Correction" for this purpose means recovery of the expenditure to the extent possible or, where recovery is not possible, such additional corrective action as is prescribed by regulations.
36. On brief respondent explains that because Foundation's records did not permit him to segregate the costs attributable to the individual radio messages in years when multiple messages were produced, he treated Foundation's aggregate payments for the messages in each year as a single expenditure. Accordingly, respondent determined Foundation made four taxable expenditures, one in each of its taxable years at issue.
37. The regulatory definitions of expenditures that are attempts to influence legislation--so-called lobbying expenditures--were made the same for public charities electing under
38. A "grass roots lobbying communication" is "any attempt to influence any legislation through an attempt to affect the opinions of the general public or any segment thereof."
39. The term "action" in
40. A regulatory example illustrates that a "specific legislation proposal" can be "specific legislation", capable of being influenced by a lobbying communication, notwithstanding that it has not been introduced in the legislative body where the communication is made. An organization based in State A notes in its newsletter that State Z has passed a bill to accomplish a stated purpose and then says that State A should pass such a bill. The organization urges readers to write their legislators in favor of such a bill. No such bill has been introduced into the State A legislature. The organization has referred to and reflected a view on a specific legislative proposal and has also encouraged readers to take action thereon.
41. The regulations' treatment of a petition-initiated ballot measure as becoming "specific legislation" when the petition is first circulated is thus a temporal standard. In finalizing these same regulations, however, the Secretary expressly rejected a temporal standard for determining when legislation (other than petition-initiated ballot measures) becomes "specific legislation", finding that such a standard would be underinclusive by failing to cover legislation not yet introduced.
The radio messages at issue for 1998 and 2000 were (according to respondent's position) addressed to petition-initiated ballot measures; namely, Measures 61 and 65 in 1998 and Measure 8 in 2000. On the stipulated facts, it is beyond dispute that the expenditures at issue were made, and the radio messages were broadcast,
The radio message at issue for 1997 and two of them for 1999 were (according to respondent's position) addressed to legislatively initiated ballot measures; namely, Measure 49 in 1997 and Measures 69 through 75 in 1999. Determining these ballot measures' status as "specific legislation" is less clear under the regulations. However, petitioners have not argued that these ballot measures (or the petition-initiated ones) were not "specific legislation" within the meaning of the regulations at the time the expenditures were made or the radio messages were broadcast. They have also not challenged the validity of the regulation that defines members of the general public as "legislators" in the case of a referendum, ballot initiative, or similar measures. Consequently, petitioners have waived any such arguments, and we assume for purposes of deciding these cases that the ballot measures at issue were "specific legislation" within the meaning of
42. Petitioners also argue that the radio messages "do not encourage the recipient to take action in any of the ways described in
43. Under the regulations, a required element of both a direct lobbying communication and a grass roots lobbying communication is that each "refers to specific legislation".
44. We are mindful of that fact that the radio message equates State government growth with
45. Consistent with our analysis of the previous radio messages, we are persuaded that the explanatory statement's use of terms that linked the "rate of growth of state government" to the "rate of growth of personal income" demonstrates that those terms were widely used in connection with Measure 8 at the time the radio messages were broadcast. Petitioners have offered no evidence to support a contrary conclusion.↩
46. Respondent argues on brief that the second radio message's reference to the first effectively incorporates the "will soon be asked" language. We disagree.↩
47. The first 2000 radio message satisfies one element of the regulatory requirements for the "nonpartisan analysis, study, or research" exception; namely, making available to the public the results of research.
48. The requirement is stated in
49.
50. The one exception is the explanatory statement for Measure 49. In that instance, the Oregon legislature overrode the ordinarily applicable statutory provisions (
51. We cite the school funding shift because the newspaper article does not explain how inflation should have been accounted for in its critique of Foundation's radio message or even whether one or both of the State revenue and personal income figures had been adjusted for inflation. We have considered the omission of the population growth adjustment in our discussion of whether the radio message presented distorted facts.
52. As noted, respondent represents on brief that Foundation's records did not establish what portion of the $341,062 Foundation spent during its 2000 taxable year was allocable to the first and second radio messages, respectively. Such an allocation now becomes necessary in view of our holding that the expenditure for the first was not a taxable expenditure while the expenditure for the second was. We expect the parties to resolve this issue as part of their computations under
53. The limit increased to $10,000 per taxable expenditure for taxable years beginning after August 17, 2006.
54. We find implicit in this stipulation the proposition that Mr. Parks was a "foundation manager" within the meaning of
55. Even if one were to construe the written response's conclusion that the radio message "does not go too far" as premised on the proposition that the message constituted "nonpartisan research, analysis, or study" or was "educational" within the meaning of the regulations, there is likewise no discussion of the requirements of those regulatory exceptions or how the message met those requirements.↩
56. Since we have concluded that Foundation's expenditure for the first 2000 radio message was not a taxable expenditure, we need not decide whether Mr. Parks had reasonable cause based on advice of counsel in agreeing to the expenditure.
57. As noted,
58. The limit increased to $20,000 per taxable expenditure for taxable years beginning after August 17, 2006.
59. In
60. As illustrations of this use of context, we have found that the examples in the regulations demonstrate that a communication "refers to" a ballot measure, notwithstanding a failure to cite it by name, when it employs terms widely used in connection with the measure or describes its general content or effect.↩
61. This aspect of the Supreme Court's reasoning in
62. We note petitioners do not contend that
63. Indeed, in It appears that Congress was concerned that exempt organizations might use tax-deductible contributions to lobby to promote the private interests of their members. It is not irrational for Congress to decide that tax exempt charities such as TWR should not further benefit at the expense of taxpayers at large by obtaining a further subsidy for lobbying.
64. Petitioners also cite
65. We note, for example, that reasonable disputes could arise concerning what constitutes "terms widely used" in connection with given legislation or what constitutes that legislation's general content or effect.↩
Nationalist Movement v. Commissioner , 37 F.3d 216 ( 1994 )
ca-79-3074-william-f-quarrie-mable-e-quarrie-and-margaret-k-quarrie , 603 F.2d 1274 ( 1979 )
United States v. Robert Lee Jamerson , 549 F.2d 1263 ( 1977 )
Big Mama Rag, Inc., a Colorado Nonprofit Corporation v. ... , 631 F.2d 1030 ( 1980 )
Amer Scty Assn Exec v. United States , 195 F.3d 47 ( 1999 )
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Ward v. Rock Against Racism , 109 S. Ct. 2746 ( 1989 )
Austin v. Michigan State Chamber of Commerce , 110 S. Ct. 1391 ( 1990 )
Regan v. Taxation With Representation of Washington , 103 S. Ct. 1997 ( 1983 )
Bob Jones University v. United States , 103 S. Ct. 2017 ( 1983 )
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. , 115 S. Ct. 1043 ( 1995 )
Federal Election Commission v. Wisconsin Right to Life, Inc. , 127 S. Ct. 2652 ( 2007 )
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Ysursa v. Pocatello Education Ass'n , 129 S. Ct. 1093 ( 2009 )
Citizens United v. Federal Election Commission , 130 S. Ct. 876 ( 2010 )