It’s all political – or is it?

With election season heating up, not-for-profits must take care not to stray into prohibited political activity that could jeopardize their tax-exempt status. The IRS has addressed the acceptability of several common activities. Knowing the agency’s position on these activities could save you tax trouble down the road.

Ban on political campaign intervention

The Internal Revenue Code is clear: For a nonprofit to maintain its status, it can’t “participate in, or intervene in (including the publishing or distributing of statements) any political campaign on behalf of (or in opposition to) any candidate for public office.”

But that doesn’t mean your hands are completely tied. If certain conditions are met, not-for-profits can indeed be active — though nonpartisan — players in the political arena.

Voter contact

Nonprofits can conduct voter registration and get-out-the-vote drives if they’re conducted in a neutral, nonpartisan manner. But you can’t, for example, refer to any candidate or party, either in support or opposition.

Voter education activities, such as the preparation and distribution of voter guides, are similarly allowed if conducted in a nonpartisan way. The IRS will consider whether the questionnaire used to solicit candidate positions or the guide itself demonstrates a bias or preference in content or structure with respect to the views of a particular candidate. The timing and distribution of voter education materials also could be relevant.

Candidate appearances

A not-for-profit can invite a candidate to speak at an event in his or her capacity as a candidate if 1) it provides to all of the candidate’s rivals an equal opportunity to participate, 2) it doesn’t indicate support for or opposition to any candidate (including in introductions and communications about a candidate’s attendance), and 3) no political fundraising takes place.

When evaluating whether equal opportunity to participate has been provided, the IRS will consider both the manner of presentation and the nature of the event to which each candidate is invited. You’ll probably violate the prohibition if, for example, you invite one candidate to speak at a heavily attended annual banquet but invite his or her opponent only to a poorly attended general meeting.

If you invite a candidate to appear in his or her individual, noncandidate capacity, you must ensure that:

• The candidate is chosen to speak solely for reasons other than candidacy (for example, because he’s an expert on a certain topic),
• The candidate speaks only in a noncandidate capacity,
• Neither the candidate nor any representative of your organization refers to the candidacy or election,
• No campaign activity occurs,
• Your organization maintains a nonpartisan atmosphere, and
• Your nonprofit clearly indicates the capacity in which the candidate is appearing, without reference to the candidacy or election, in the communications announcing the appearance.

Candidates also may attend a not-for-profit’s event that’s open to the public as long as the organization doesn’t publicly recognize the candidate or invite him or her to speak.

Business activities

An activity such as selling or renting mailing lists, leasing office space or accepting paid political advertising may constitute prohibited activity. The determination will depend on several factors.

These may include whether the good, service or facility is available to rival candidates on an equal basis, whether it’s available to the general public, whether the fees charged are the nonprofit’s usual rate, and whether the activity is an ongoing activity of the organization (as opposed to conducted for only a particular candidate).

Proceed with caution

Violation of the ban on political activity could result in the denial or revocation of your nonprofit’s tax-exempt status, as well as the imposition of an excise tax on the amount spent on the prohibited activity. The determination of whether an activity is political will ultimately depend on the specific facts and circumstances. But remember, the underlying criterion for an activity not to be political is generally that the activity clearly be nonpartisan.