Hostname: page-component-cc8bf7c57-5wl6q Total loading time: 0 Render date: 2024-12-12T02:00:55.908Z Has data issue: false hasContentIssue false

Corporate Restructuring of Tax-Exempt Hospitals: The Bastardization of the Tax-Exempt Concept

Published online by Cambridge University Press:  28 April 2021

Extract

The largest single group of hospitals in the country is composed of private nonprofit hospitals, which are exempt from taxation under the Internal Revenue Code. The second largest group of hospitals consists of for-profit hospital corporations. The third and fourth largest groups are, respectively, municipal hospitals and state and federal specialty hospitals, such as mental health facilities and public health hospitals.

Although the idea of hospitals engaging in business activities used to arouse scorn, the concept has now gained acceptance. This change began in the late 196Os, when the enactment of the Medicare and Medicaid programs forced hospitals to become more so phisticated in handling reimbursement issues, certification-of-need, unrelated business income, and productivity.

By 1981, the percentage of hospital charges reimbursed by the Medicare system had declined to 68.7 percent, from its 1974 level of 75.4 percent. In 1982, with the signing of the Tax Equity and Fiscal Responsibility Art (TEFRA), hospitals were essentially told that they must find their own solution to the problem of inadequate funding.

Type
Article
Copyright
Copyright © American Society of Law, Medicine and Ethics 1986

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Wiles, P.M., Corporate Restructuring: One Answer to TEFRA's Challenge, North Carolina Medical Journal, 45(1): 31 (January 1981). The author is indebted to this article and to L.J. Hoch's lengthy analysis of the restructuring issue (see infra, note 6) for much of the discussion that follows.Google Scholar
DeWitt, C., Getting Down to Business, Hospitals 55(19): 76 (Oct. 1, 1981).Google Scholar
Wiles, , supra note 1, at 43.Google Scholar
Id. at 4344; see also 42 U.S.C.A. § 1395ww(d)(1983).Google Scholar
Wiles, , supra note 1, at 4344.Google Scholar
Hoch, L.J., Corporate Reorganization: Nonprofit Tax-Exempt Hospitals, Topics in Health Care Financing 11(1): 1, 2, 45 (Fall 1984).Google ScholarPubMed
Id. at 18.Google Scholar
42 U.S.C.A. §1395ww(d)(1983); see also Hoch, , supra note 6, at 5; Wiles, , supra note 1, at 44.Google Scholar
Wiles, , supra note 1, at 44.Google Scholar
Hoch, , supra note 6, at 5.Google Scholar
See gen. id.Google Scholar
Wiles, , supra note 1, at 43.Google Scholar
Id.; DeWitt, , supra note 1, at 77; and Hoch, , supra note 6.Google Scholar
Hoch, supra note 6, at 17.Google Scholar
DeWitt, , supra note 1; Note, Not-for-Profits Move Toward Corporate Restructuring, Hospitals 55(17): 55 (Sept. 1, 1981).Google Scholar
Hoch, , supra note 6, at 17; Wiles, , supra note 1, at 45.Google Scholar
Ernst & Whinney, Corporate Reorganization: A Survey of Hospitals That Have Reorganized (Ernst & Whinney, Cincinnati, 1982), pp. 1011; Hoch, , supra note 6, at 20.Google Scholar
Hoch, , supra note 6, at 46.Google Scholar
Irvine, R.B. Moss, C.M., Investor-Owned v. Not-for-Profit, Ohio State Medical Journal 78(9): 31 (September 1982).Google Scholar
The controlled foundation and the independent foundation models will not be discussed since they are not commonly advocated as effective means to achieve the hospital's ends. See gen. Hoch, , supra note 6, at 17–20.Google Scholar
26 U.S.C.A. §§501-28.Google Scholar
Parts I through III, §§501 through 515 (26 U.S.C.A. §§501-15) address the tax-exempt status, generally, of certain organizations, including hospitals and other medical care facilities; Parts IV through VII, §§521 through 528 (26 U.S.C.A. §§521-28) address the tax-exempt status of farmers’ cooperatives, shipowners' protection and indemnity associations, political organizations, and certain homeowners' associations.Google Scholar
See gen. 26 U.S.C.A. §§501-4, 508, 511-14. These general rules include numerous reporting requirements (e.g., Treas. Reg. §1.501(a)-1, Rev. Proc. 84-46, 1984–22 IRB 31, Rev. Proc. 80-28, 1980–1 CB 680, and 26 U.S.C.A. §508).Google Scholar
26 U.S.C.A. §§4940-48, 507-9.Google Scholar
E.g., 26 U.S.C.A. §§4940-48, 502.Google Scholar
26 U.S.C.A. §501 (c)(3). See also text and notes at notes 43-44, infra.Google Scholar
See Bob Jones University v. United States, 461 U.S. 574 (1983).Google Scholar
Federation Pharmacy Services, Inc. v. Commissioner of Internal Revenue, 625 F.2d 804, 807 (8th Cir. 1980).Google Scholar
Bob Jones University, supra note 27, at 2026–29.Google Scholar
26 U.S.C.A. §510(a).Google Scholar
See, e.g., Massachusetts General Laws, c.63, §30, which makes exemption from the business income tax contingent upon exemption under Section 501, and Massachusetts General Laws, c.64H, §6(e), which provides that sales to 501(c)(3) organizations are exempt under the state sales tax provisions.Google Scholar
See, e.g., Rev. Rul. 55-453, 1955–2 CB 54 (contributions by an individual to a governmental entity for hospital expansion, development, or creation qualify for the maximum deduction).Google Scholar
Section 170 provides that any charitable contribution can be deducted (26 U.S.C.A. §170[a]). A “charitable contribution” is defined, in relevant part, as a gift to or for the use of a corporation, trust, or community chest, fund, or foundation … organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals. (26 U.S.C.A. §170[c][2])Google Scholar
26 U.S.C.A. §403(b).Google Scholar
26 U.S.C.A. §3121(k). The relevant part of Section 3121(k)(1)(A) reads:Google Scholar
39 U.S.C.A. §401(2), and the regulations promulgated thereunder—specifically, 39 C.F.R. §111.1, which includes, by reference, the Domestic Mail Manual. The Domestic Mail Manual explains the procedure required for a nonprofit organization to qualify for the third-class special bulk rate.Google Scholar
Bromberg, R.S. Teplitzky, S.V., Tangling with Tax Law, Hospitals 57(5): 69, 70 (March 1983).Google ScholarPubMed
42 U.S.C.A. §§291a-291o. The Hill-Burton Act, also referred to as the Hospital Survey and Construction Act, provides financial assistance to states for the construction and modernization of public and nonprofit hospitals and other medical facilities (42 U.S.C.A. §§291a-291b). This assistance is provided in the form of grants (42 U.S.C.A. §291a) as well as loan guarantees and loans (42 U.S.C.A. §§291j-1-291j-6). With respect to the grant program, the act initially allots money to the individual states based on the state's population, its financial need, and the need for modernization of its facilities (42 U.S.C.A. §291b). Funds are then distributed to each state as needed for each project, up to the established allotment, upon a showing that the particular project complies with the act (42 U.S.C.A. §291f).Google Scholar
42 U.S.C.A. §291i(a),(c).Google Scholar
26 U.S.C.A. §§501,503.Google Scholar
Section 501(a) reads: “An organization described in subsection (c) or (d) or section 401(a) shall be exempt from taxation under this subtitle unless such exemption is denied under section 502 or 503” (26 U.S.C.A. §501[a]). Section 401(a) defines qualified pension, profit-sharing, and stock bonus plans and is, therefore, irrelevant for the discussion herein. It should be noted that Section 503(a), related to the denial of exemptions for certain organizations, is inapplicable to 501(c)(3) organizations by the terms of Section 503(a)(1).Google Scholar
26 U.S.C.A. §501(c).Google Scholar
26 U.S.C.A. §501(c)(3). Rev. Rul 56-185, 1956–1 CB 202, as modified by Rev. Rul. 69-545, 1969–2 CB 117, indicates that a hospital may establish itself as an exempt charitable organization under Section 501(c)(3). Further, an organization that provided health care services to its members on a profit basis and to nonmembers on a fee-for-service basis has been granted exemption as a charitable organization (Sound Health Association, 71 T.C. 158, Dec. 35,519). Because hospitals are not specifically listed in Section 501(c), the House of Representatives Ways and Means Committee sought in 1969 to introduce a bill that would establish hospitals as a separate exempt category providing they were “organized and operated exclusively … for the providing of hospital care” (H.R. Rep. No. 413, 91st Cong., 1st Sess. [1969], U.S. Code Cong. & Ad. News 1645, 1688). This committee report indicates that although hospitals have been able in the past to qualify under Section 501(c)(3) as charitable organizations, the bill would seek to avoid any uncertainties occasioned by the somewhat vague wording of the statute and to clarify congressional intent (id). The Senate Finance Committee, however, modified this bill by deleting the explicit language (S. Rep. No. 552, 91st Cong., 1st Sess. [1969], U.S. Code Cong. & Ad. News 2027, 2090). The deleted version was ultimately adopted by the House-Senate Conference Committee, so that there was no statutory change (Pub. L. 172, 83 Stat. 487 [1969]).Google Scholar
26 U.S.C.A. §501(c)(3). It should be noted that there are also numerous reporting requirements for organizations desiring to be granted tax-exempt status as well as for organizations that are already tax-exempt; see, e.g. Treas. Reg. §§1.501(a)-1(3) and 1.6033-1.Google Scholar
Rev. Rul. 56-185, 1956–1 CB 202, as modified by Rev. Rul. 69-545, 1969–2 CB 117. See also The Church of the Visible Intelligence That Governs the Universe v. United States, 4C1. Ct. 55, 61 (1983).Google Scholar
Treas. Reg. §1.501(c)(3)-1(a).Google Scholar
Treas. Reg. §1.501(c)(3)-1(a)(2).Google Scholar
Treas. Reg. § 1.501 (c)(3)-1(b)(1)(ii).Google Scholar
Treas. Reg. §1.501(c)(3)-1(b)(1)(i).Google Scholar
Treas. Reg. § 1.501 (c)(3)-1 (b)(1)(iii).Google Scholar
Treas. Reg. §1.501(c)(3)-1(b)(4).Google Scholar
Treas. Reg. §1.501(c)(3)-1(b)(3).Google Scholar
26 U.S.C.A. §501(c)(3).Google Scholar
Treas. Reg. §1.501(c)(3)-1(c)(1).Google Scholar
Rev. Rul. 69-545, 1969–2 CB 117, 118.Google Scholar
Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976>), at 42–43. See also Lugo v. Miller, 640 F.2d 823 (6th Cir. 1981).),+at+42–43.+See+also+Lugo+v.+Miller,+640+F.2d+823+(6th+Cir.+1981).>Google Scholar
Rev. Rul. 83-157, 1983–2 CB 94.Google Scholar
26 U.S.C.A. §501(c)(3).Google Scholar
Treas. Reg. §1.501(a)-1(c).Google Scholar
Bubbling Well Church of Universal Love, Inc. v. Commissioner of Internal Revenue, 670 F.2d 104, 105 (9th Cir. 1981). See also Church of the Visible Intelligence, supra note 45.Google Scholar
Incorporated Trustees of Gospel Worker Society v. United States Dept. of Treasury, 510 F. Supp. 374, 379 (D. D.C. 1981); affirmed 672 F.2d 894 (3d Cir. 1981); cert. den'd 456 U.S. 944 (1982).Google Scholar
Rev. Rul. 69-383, 1969–2 CB 113, 114.Google Scholar
B.H.W. Anesthesia Foundation, Inc., 72 T.C. 681, 684 (1979).Google Scholar
University of Maryland Physicians v. Commissioner of Internal Revenue, 41 T.C.M. 732, Dec. 37,633(M), T.C. Memo 1981-23.Google Scholar
Lowry Hospital Association v. Commissioner of Internal Revenue, 66 T.C. 850, 858–60.Google Scholar
Sonora Community Hospital v. Commissioner of Internal Revenue, 397 F.2d 814 (9th Cir. 1966).Google Scholar
26 U.S.C.A. §501(c)(3). If an organization loses its tax-exempt status under Section 501(c)(3) because of substantial lobbying, it cannot at any time thereafter qualify as a tax-exempt organization under Section 501(c)(4) (26 U.S.C.A. §504). Section 501(c)(4) defines tax-exempt civic leagues or organizations operated exclusively for the promotion of social welfare.Google Scholar
Treas. Reg. §1.501(c)(3)-1(c)(3).Google Scholar
26 U.S.C.A. §501(h).Google Scholar
26 U.S.C.A. §§501(h), 4911(c)(2).Google Scholar
26 U.S.C.A. §4911(c)(4).Google Scholar
26 U.S.C.A. §509(a).Google Scholar
See gen. 26 U.S.C.A. 508, 4940–48. See also Change–All Souls Housing Corp. v. United States, 671 F.2d 463 (1982).Google Scholar
26 U.S.C.A. §4940(a).Google Scholar
26 U.S.C.A. §§4941-44.Google Scholar
See H.R. Rep. No. 413 and S. Rep. No. 552, supra note 43; Change-All Souls, supra note 73, at 465.Google Scholar
Church of the Visible Intelligence, supra note 45, at 64, citing 26 U.S.C.A. §§170 and 509(a); S. Rep. No. 552, supra note 43, at 2085; and H.R. Rep. No. 413, supra note 43, at 1686.Google Scholar
William F. Quarrie, Mable E. Quarrie and Margaret K. Quarrie Charitable Fund v. Commissioner of Internal Revenue, 603 F.2d 1274, 1277 (7th Cir. 1979).Google Scholar
26 U.S.C.A. §509(a)(1)-(a)(4).Google Scholar
See 26 U.S.C.A. §§511-14.Google Scholar
26 U.S.C.A. §512(a).Google Scholar
26 U.S.C.A. §513(a).Google Scholar
Rensselaer Polytechnic Institute v. Commissioner of Internal Revenue, 732 F.2d 1058, 1061 (2d Cir. 1984); Service Bolt & Nut Co. v. Commissioner of Internal Revenue, 724 F.2d 519, 524 (6th Cir. 1983).Google Scholar
26 U.S.C.A. §512(a).Google Scholar
26 U.S.C.A. §512(b).Google Scholar
26 U.S.C.A. §512(a).Google Scholar
Treas. Reg. §1.512(a)-1(a).Google Scholar
26 U.S.C.A. §513(a).Google Scholar
Louisiana Credit Union League v. United States, 693 F.2d 525, 532 (5th Cir. 1982); Carolinas Farm & Power Equipment Dealers Association v. United States, 699 F.2d 167, 170 (4th Cir. 1983); Disabled American Veterans v. United States, 650 F.2d 1178, 1185 (Ct. of Claims 1981), appeal after remand 704 F.2d 1570 (U.S. Ct. App. 1983); and American Bar Endowment v. United States, 4 Cl. Ct. 404, 409 (1984).Google Scholar
Louisiana Credit Union League, supra note 90, at 535–36.Google Scholar
26 U.S.C.A. §§511-13.Google Scholar
Rev. Rul. 69-268, 1969–1 CB 160.Google Scholar
Rev. Rul. 69-267, 1969–1 CB 160 (gift shop); Rev. Rul. 69-269, 1969–1 CB 160 (parking lot).Google Scholar
Rev. Rul. 69-463, 1969–2 CB 131; Gundersen Medical Foundation, Ltd. v. United States, 536 F. Supp. 556 (D. D.C. 1982).Google Scholar
I.R.S. Letter Ruling 8131063.Google Scholar
St. Luke's Hospital of Kansas City, 494 F. Supp. 85 (W.D. Mo. 1980).Google Scholar
Rev. Rul. 68-374, 1968–2 CB 242, 243; Hi-Plains Hospital v. United States, 670 F.2d 528, 531 (5th Cir. 1982). See also Rev. Rul. 68-376, 1968–2 CB 246, which defines a hospital “patient” for the purposes of Section 513(a)(2).Google Scholar
I.R.S. Letter Ruling 8206093, Nov. 10, 1981.Google Scholar
26 U.S.C.A. §§513(e), 501(e)(1)(A).Google Scholar
26 U.S.C.A. §501(e).Google Scholar
26 U.S.C.A. §513(e).Google Scholar
Northern California Central Services, Inc. v. United States, 591 F.2d 620, 623–24 (Ct. of Claims 1979); Hospital Central Services Association v. United States, 623 F.2d 611, 612 (9th Cir. 1980), cert. den'd 450 U.S. 911 (1981); HCSC—Laundry v. United States, 450 U.S. 1, 5 (1981).Google Scholar
Metropolitan Detroit Area Hospital Services, Inc. v. United States, 634 F.2d 330, 335 (6th Cir. 1980), cert. den'd 450 U.S. 1031 (1981).Google Scholar
See 26 U.S.C.A. §§502, 4940-48, and 507-9.Google Scholar
26 U.S.C.A. §502(a).Google Scholar
26 U.S.C.A. §§507-9, 4940-48. See the discussion concerning the more restrictive provisions for private foundations and the congressional intent in enacting these provisions in the text and notes at notes 70 to 77, supra.Google Scholar
Hoch, , supra note 6, at 20; Wiles, , supra note 1, at 45. The description that follows is derived in large part from Hoch. The reader is directed to his article for more specific information concerning the corporate reorganization of hospitals.Google Scholar
Hoch, , supra note 6, at 20.Google Scholar
Id. at 24; and 26 U.S.C.A. §509(a).Google Scholar
26 U.S.C.A. §509(a)(3); Hoch, , supra note 6, at 26.Google Scholar
Hoch, , supra note 6, at 26-27.Google Scholar
Id. at 49.Google Scholar
Id. at 32-34.Google Scholar
Id. at 20-22.Google Scholar
Id. at 52.Google Scholar
Id. at 51.Google Scholar
See id. at 54-56.Google Scholar
Id. at 61.Google Scholar
Id. at 51.Google Scholar
Id. at 61-62.Google Scholar
Wiles, , supra note I, at 46.Google Scholar
26 U.S.C.A. §501(c)(3).Google Scholar
Treas. Reg. §1.501(c)(3)-1(b).Google Scholar
Treas. Reg. §1.501(c)(3)-1(c)(2).Google Scholar
26 U.S.C.A. §511.Google Scholar
See gen. 26 U.S.C.A. §165.Google Scholar
See 26 U.S.C.A. §§168, 46-48.Google Scholar
26 U.S.C.A. §501(c)(3).Google Scholar
26 U.S.C.A. §§501(c)(3), 501(h), 4911(c); Treas. Reg. §1.501(c)(3)-1(c)(3). See also the Federal Election Campaign Act (FECA) of 1971, 2 U.S.C.A. §§431-55 (1983).Google Scholar
Id.; Hastings, D.A. Oldaker, W.C. Kerman, L.J., Tax-Exempt Hospitals and Electoral Politics, Hospitals 58(15): 80 (Aug. 1, 1984).Google ScholarPubMed
See gen. 2 U.S.C.A. §§431-55.Google Scholar
Id. and regulations promulgated thereunder. See also Hastings, Oldaker, Kerman, supra note 131, at 82.Google Scholar
Wiles, , supra note 1, at 44.Google Scholar