(a) General Deduction Reduction Rule
The general deduction reduction rule is as follows: When a charitable gift of capital gain property is made, the amount of the charitable deduction that would otherwise be determined must be reduced by the amount of gain that would have been long-term capital gain if the property contributed had been sold by the donor at its fair market value, determined at the time of the contribution, when the gift is to or for the use of a private foundation (with the aforementioned three exceptions).44
In these circumstances, if the contributed property is capital gain property, the charitable deduction that would otherwise be determined must be reduced by the amount of the unrealized appreciation in value. The charitable deduction under these rules is confined to the basis in the property.
This rule applies (1) irrespective of whether the donor is an individual or a corporation, (2) irrespective of whether the charitable contribution is made to or for the use of a charitable organization,45 and (3) to a gift of property prior to application of the appropriate percentage limitation(s).46
(b) Qualified Appreciated Stock
An exception to the deduction reduction rule is that it does not apply in the case of a contribution of qualified appreciated stock.47 That is, when this exception is applicable, the charitable deduction for a contribution of stock to a private foundation is based on the fair market value of the stock at the time of the gift.
Basically, the term qualified appreciated stock means any stock for which (as of the date of the contribution) market quotations are readily available on an established securities market, and that is capital gain property.48
In the sole case on the point, a court held that stock contributed to a private foundation did not give rise to a charitable deduction based on its fair market value, because the stock did not constitute qualified appreciated stock.49 The stock involved was that of a bank holding company. The shares were not listed on the New York Stock Exchange, the American Stock Exchange, or any city or regional stock exchange, nor were the shares regularly traded in the national or any regional over-the-counter market for which published quotations are available. The shares were not those of a mutual fund. A brokerage firm occasionally provided a suggested share price based on the new asset value of the bank. The procedure for someone wishing to purchase or sell shares of the corporation was to contact an officer of the bank or a local stock brokerage firm specializing in the shares. An attempt would be made to match a potential seller with a potential buyer; the shares were not frequently sold. The court held that the stock could not constitute qualified appreciated stock because the market quotations requirement had not been satisfied.50
The IRS ruled that stock to be contributed to a private foundation constituted qualified appreciated stock, with the agency concluding that market quotations for the stock are readily available on an established securities market due to the accessibility to them on Internet financial sites.51 The stock in this instance was not traded on a stock exchange; nonetheless, these sites are “well known and heavily accessed.” The market quotations for this stock were found to be published, in that “enabling virtually anyone in the world with access to the Internet to view current and historical market quotations for [this] stock means that the possibility is maximized that someone would detect a situation in which the market quotations are not reasonable.” The IRS concluded that the market quotations for this stock are readily available, noting the “ease with which anyone can access current and historical market quotations on the [Over-the-Counter Bulletin Board (OTCBB)] Internet site and other financial Internet sites.” The OTCBB was deemed by the IRS to be an established securities market; the stock involved was found to be capital gain property.
The term qualified appreciated stock does not include any stock of a corporation contributed by a donor to a private foundation to the extent that the amount of stock contributed (including prior gifts of the stock by the donor) exceeds 10 percent (in value) of all of the outstanding stock of the corporation.52 In making this calculation, an individual must take into account all contributions made by any member of their family.53
The IRS, from time to time, issues private letter rulings as to whether stock constitutes qualified appreciated stock.54
§ 3.6 CONTRIBUTIONS OF PROPERTY FOR UNRELATED USE
Another special rule concerning calculation of the charitable deduction potentially applies when a donor makes a contribution of tangible personal property to a charitable organization.
(a) Special Rule
The special rule is: When a charitable gift of tangible personal property is made, the amount of the charitable deduction that would otherwise be determined must be reduced by the amount of gain that would have been long-term capital gain if the property contributed had been sold by the donor at its fair market value, determined at the time of the contribution, when:
The use by the charitable donee is unrelated to the donee's tax-exempt purpose or, when the donee is a governmental unit, if the use to which the contributed property is put is for a purpose other than an exclusively public purpose,55 or
The property is applicable property that is sold, exchanged, or otherwise disposed of by the donee before the last day of the tax year in which the contribution was made and with respect to which the donee has not made the requisite certification.56
In these circumstances, when the contributed property is capital gain property, the charitable deduction that would otherwise be determined must be reduced by the amount of the unrealized appreciation in value.57
This rule applies:
Irrespective of whether the donor is an individual or a corporation
Irrespective of the tax classification of the charitable organization that is the donee (for example, public or private charity)58
Irrespective of whether the charitable contribution is made to or for the use of a charitable organization59
To a gift of tangible personal property prior to application of the appropriate percentage limitation(s)60
When
