Tax incentives in favour of public utility: a limited debate?

Taxation is one public policy tool^[1] among many, and governments can use it in different ways: by resorting to direct spending programs (for example, State social policies or grants to organizations), or to special arrangements of the taxation regime (for example, different tax rates depending on particular criteria, tax exemptions for particular taxpayers or tax deduction and tax credit possibilities).  Taxation options (starting with those that concern the favoured taxation tools^[2]) involve political, economic and social choices that will represent different conceptions of social justice, redistribution and efficiency^[3].

In the domain of taxation policies that aim to support philanthropy, tax exemptions for organizations that pursue public utility, as well as the deductibility of donations made to these organizations, are imposed as necessary tools of the State’s support of “good causes”. While they may be widely trivialized today, these measures are in no way universal or timeless: a comparison of national contexts shows that frameworks, incentives as well as controls differ significantly from one country to the next. While the regulatory and fiscal frameworks are liberalized in the majority of European countries^[4], significant variations remain between European countries, and even, on the national level in Switzerland, among the different cantons. The legal frameworks have been incessantly evolving throughout the past decades.

While tax incentive policies have known an undeniable success, they still are the subject of many critiques^[5]. These critiques concern, amongst other things, what the literature deems as a double “plutocratic bias”. The taxation system of indirect public funding of public utility organizations can be considered as a “regressive” tax system. This means that it is the less fortunate who pay, through their direct or indirect taxes such as the Value Added Tax, to support the tax gap left by fiscal expenditures in favour of the philanthropic choices of the wealthier population. Other authors focus on the choice of which projects or public utility organizations are supported. Reich^[6] demonstrates how a tiny portion of donations goes to those who are in need. A third critique concerns the evaluation of the efficiency of these incentives in terms of public policy. Monnet and Panizza^[7] show how the question of social efficiency is hard to measure and is more often assumed than confirmed.

Despite these critiques, demands in favour of reforms that favour philanthropy, emanating from parliament, interest groups or lawyers, are numerous. In Switzerland, for example, while the Federal Law concerning foundations has not evolved since the revision implemented on January 1st, 2006, following a parliamentary initiative called Schiesser (00.461) deposited on December 14th, 2000 , the requests of reform for this law – and the improvement of the framework’s conditions – have not ceased since. The Werner Luginbühl motion (09.3344), deposited in March of 2009 with the objective of “reinforcing the attraction of Switzerland as location favourable for foundations” and a parliamentary initiative from this same deputy “for the reinforcement of the attraction of Switzerland for foundations” (14.470) deposited on December 9th, 2014 are worthy of mention. These three interventions^[8] do not question what can be considered as “objectives” of public utility, neither do they question the activities that are recognized as of general interest (and which open the doors for exemptions, for organizations, and to tax deductions for donors). Instead, they tend to soften the set of rules that frame the organization and functioning of legal entities wishing to be recognized as being of public utility.

The justifications for these modifications can be classified into two categories. On the one hand, it would be to increase the resources available for public utility in a context where the State can no longer undertake all of the social policies deemed necessary. On the other hand, it would be to look good when compared to the legislation of other countries, in particular, adjacent ones. However, there is no mention of the fiscal justice of these measures, of them being democratic or not, or of the evaluation of the work being accomplished by these “public utility” actors.

When reading the answers of the different parliamentary projects’ executive powers, we see the strong desire for stability and the defence of the status quo. While generally maintaining that they are interested in supporting legal entities recognized as being of public utility, public authorities also bring up why it is important to maintain a restrictive definition of the notion of public utility and to limit the number of legal entities or activities that should benefit from tax advantages. It is interesting to note that while there are many arguments (fiscal justice, concern with not wanting to complicate the tax system’s administrative organization, and the concern of the comprehensibility of the tax system for citizens), the question of the relevance of tax incentives as a public policy tool (in comparison with other public policy tools, such as direct expenditures) is not, or rarely, asked.

There seems to be a significant discrepancy between the debates being held among the previously mentioned political actors and the concerns of authors having questioned tax deduction incentives used to favour public utility causes, the latter also proposing several reforms. While legislators, lawyers and interest groups propose an increase in the incentives for donors and public utility organizations, and public authorities seem to defend the status quo, different actors are proposing, on the contrary, a limitation of these tax incentives.

To remedy the inequalities generated by the tax exemption system for public utility organizations, the help given should be proportional to the organization’s financial means (notably fortunes). The State could collect taxes from all institutions and have them redistributed as grants: which is what Niggli^[9] proposed over 70 years ago.

However, it is less the exemptions made for public utility organizations and more those made for donations that are the source of critique. While taxation and administrative management specialists highlight the increased workload for taxation officials generated by the deductions and propose simplifications (removal of the deductions or flat-rate deductions on income instead of current deductions)^[10], economists, political scientists and philosophers are more concerned by the issue of tax justice. Tax credits, based on a fixed rate and up to a maximum amount, are often presented as a preferable alternative to deducting donations from taxable income: such is the case with Thaler^[11], laureate of the Nobel Prize for Economics in 2017, and with Reich, an American political scientist^[12]. This tax credit could even be considered as an income that must be included in one’s tax declaration, as was proposed by Mc Daniel^[13]. Other authors, concerned with the elimination of inequalities surrounding tax deductions, were wary of giving up on encouraging the population’s participation in supporting public utility organizations and the reinforcement of civil society through both the institutionalization and the daily functioning of organizations recognized as being of public utility. This concern pushed them to propose solutions that fell outside of the realm of tax deductions. Instead, they suggested replacing them, for example, with the possibility for every taxpayer to choose, in their tax declaration, the organization to whom they wish to allocate a predefined sum of their taxes, one that is identical for each taxpayer^[14].

There are many explanatory hypotheses about the difference between the issues that retain the attention of academics and those that interest lawyers, interest groups and politicians. It could be due to the technicality of the subject, with the questions of tax incentives often being seen as legal rather than political. The fact that it is a negligible subject in the political agenda and that political parties are taking no strong positions on the subject can also be part of the explanation. It can also be taken into account that tax deductions for donations to organizations of public utility are but one of the 99 tax break possibilities allowed by the Federal Finance Administration^[15], and concern but a small portion of the Confederation’s budget, representing an amount under 2% of the taxes connected to the Direct Federal Tax (DFT) ^[16]. The absence of precise data on the amounts that these tax expenditures represent (as a reminder, only data on the DFT of private individuals is available), does not help the matter.

It may be, first and foremost, the simple fact of speaking of charity or philanthropy that compromises the presence itself of the debate in the political arena. Given the moral and emotional charge of these notions, it seems impossible to weigh their pros and cons dispassionately. As Bernholtz et al. ironically state in their publication dedicated to the moral and political limitations of philanthropy: ” if philanthropy is a morally valuable behaviour or character virtue, then the more, the better. Philanthropy should be everywhere!”^[17]. How does one oppose a phenomenon with such positive connotations? Without first bringing to light the political dimension of philanthropy^[18], or reflecting on the injustices surrounding tax incentives, which questions the validity of their very existence^[19], it does indeed seem difficult.