Image: The Independent
Private foundations have a responsibility to do more than merely comply with tax laws in a technical sense. They have a duty to serve public, not private, interests.
By Ellen P. Aprill, J.D. / 08.27.2018
Since 2008, nearly every donation Donald Trump’s foundation has made near his Mar-a-Lago mansion and club in Florida funded charities that hosted events there, according to recent investigative reporting.
This pattern, first reported by The Palm Beach Post, follows an accusation New York Attorney General Barbara Underwood made when she filed a lawsuit against the foundation, Trump and three of his adult children for an alleged “pattern of persistent illegal conduct.”
I am a scholar of nonprofits who has researched their regulation since I served in the Treasury Department’s Office of Tax Policy in the late 1980s. I find these reports about the Trump Foundation disturbing because they give the impression that the foundation was benefiting Trump’s business interests. And that is at odds with the purpose of philanthropy.
At the same time, based on the evidence currently available, I do not believe that the Trump family will have to pay penalties, much less face criminal charges, even if the reports of self-serving charity are true.
A suspicious pattern
The newspaper found that eight charities received donations, typically of US$25,000, from the Trump Foundation after they changed plans to hold their galas and other events at Mar-a-Lago instead of at other venues.
These gifts from the Trump Foundation to the nonprofits that doubled as Mar-a-Lago’s clients make it seem as if the donations were a quid pro quo for doing business with Trump. Even if the charities managed to use that glitzy venue at a bargain rate, any explicit arrangement would still violate relevant tax laws that prohibit transactions that benefit foundation insiders.
The nonprofits, however, deny that there were any strings attached to their gifts from the Trump Foundation. Instead, they say, the donations came as a “surprise.”
One reason why this venue moving stood out is that it clashed with a regional trend. More than two dozen charities that had held events at Mar-a-Lago stopped doing that in the 2017-2018 gala season.
Since 1969, the Internal Revenue Code has included a set of onerous excise taxes – a kind of fine designed to prevent self-dealing by private foundations, such as when they make business transactions that involve insiders, like their board members or executives.
These penalties apply in many different situations. They can be a way to punish private foundations for lavishing donations on people and charities closely related to their leaders. More typically, foundations pay off the debts insiders owe or manipulate prices.
Although the tax code provisions that spell out what constitutes using philanthropic money for non-charitable purposes are broadly defined, I do not believe that they would apply with the Trump Foundation’s alleged behavior involving Mar-a-Lago fundraising events.
Nonetheless, this alleged pattern does reinforce widespread concerns about how that foundation operated.
Not technically illegal
While it might seem that using assets of the Donald J. Trump Foundation to benefit Mar-a-Lago clients who rent the venue for their fundraising events could have broken tax rules, no evidence of an agreement between the foundation and the charities that held Mar-a-Lago events has come to light.
But in my view, private foundations have a responsibility to do more than merely comply with tax laws in a technical sense. They have a duty to serve public, not private, interests.
Giving the impression that the foundation’s charitable gifts were somehow tied to driving business to Mar-a-Lago, like New York Attorney General Underwood’s accusations, I believe, demonstrates the Trump Foundation’s failure to see its purpose as pursuing a charitable mission.