William Mitchell Law Review

Publication Information

31 William Mitchell Law Review 183 (2004-2005)


[T]his article proposes a new approach to defining the term “charitable” for tax purposes that both respects the essence of tax-exempt eleemosynary activity and injects an element of clarity that has eluded the use of the term in modern tax parlance. Part I traces the evolution of the legal concept of charity, with emphasis on the shift in focus from poverty relief to social action facilitated through the device of trust law. I argue that it is in this shift of emphasis that the concept of charity became entangled in property concepts and thereby transformed into something wholly unrelated to its original construction. Part II illustrates the often unprincipled and random manner in which the charitable concept has been applied in the context of federal income tax law. This anomalous situation has been perpetuated due to the lack of any satisfactorily articulated exegesis, resulting in uncertainty in the application of the law and rendering impotent any intelligent discussion of the underlying social policy issues surrounding the charitable tax provisions. In Part III, the parameters of reaching an acceptable reconciliation of social abstraction and legal terminology are explored. Finally, Part IV articulates an approach to the tax definition of charitable uses that replaces what has become a frail and muddled landscape with a new, sturdier foundation. This new foundation is not intended to end the need for discussion on the subject, but rather to provide a currently missing basis for discussing the real policy questions that have been allowed to escape scrutiny by the obfuscatory concealment of antiquated legal terminology that has been left too long unexamined.