February 17, 2017

Substance Over Form--Description and Example

Question:

A woman gifted a large amount to a specific church need by recording her restriction of the gift in the memo section of her check. The need had been communicated at a public meeting of the church but no formal designated fund had yet been established.

The church's Constitution states, "all contributions made to specific funds or otherwise designated remain subject to the exclusive control and discretion of the [leadership] of the church."

Is this gift tax deductible even though it is designated to a need for which no formal solicitation had been made by the church and, therefore, some may argue, not under the control of the church?

Does recording the designation on the face of the check remove the "exclusive control" condition?

Answer:

We believe that although this gift was restricted, the gift is still under the control of the church. Wisely, the church's policy seems to clearly communicate this expectation. The church communicated the need before the gift was given and certainly endorsed the appropriateness of the designation.

The phrase "substance over form" refers to true intentions (or motives) of an action instead of the documentation of the action which may or may not be consistent with its true intentions (or motives). Of course, the Internal Revenue Service is especially suspicious of taxpayer attempts to produce documents that hide the true intentions (or motives) of an action. Nevertheless, the opposite may also be true--faulty documents must not necessarily override the otherwise legal or ethical actions of a taxpayer.

For example, just because someone writes on the check form “tax deductible donation for my son’s Christian school tuition bill” does not override the substance that he was paying his own personal obligation. Similarly, the substance of the donation to the church referenced in our question was in response to a public announcement of a need for which the donor received no direct personal benefit in return (no quid pro quo component). While recording a description in the memo section can disclose damaging truth, in this case, the donation is most likely deductible.

For more, entering "substance over form" in the search window of the IRS website will return numerous "hits" of its discussion and application of this concept.

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