[Code of Federal Regulations]
[Title 26, Volume 1]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR1.170A-1]

[Page 40-45]
 
                       TITLE 26--INTERNAL REVENUE
 
    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)
 
PART 1_INCOME TAXES--Table of Contents
 
Sec. 1.170A-1  Charitable, etc., contributions and gifts; allowance of 
deduction.

    (a) Allowance of deduction. Any charitable contribution, as defined 
in section 170(c), actually paid during the taxable year is allowable as 
a deduction in computing taxable income irrespective of the method of 
accounting employed or of the date on which the contribution is pledged. 
However, charitable contributions by corporations may under certain 
circumstances be deductible even though not paid during the taxable year 
as provided in section 170(a)(2) and Sec. 1.170A-11. For rules relating 
to recordkeeping and return requirements in support of deductions for 
charitable contributions (whether by an itemizing or nonitemizing 
taxpayer) see Sec. 1.170A-13. The deduction is subject to the 
limitations of section 170(b) and Sec. 1.170A-8 or Sec. 1.170A-11. 
Subject to the provisions of section 170(d) and Sec. Sec. 1.170A-10 and 
1.170A-11, certain excess charitable contributions made by individuals 
and corporations shall be treated as paid in certain succeeding taxable 
years. For provisions relating to direct charitable deductions under 
section 63 by nonitemizers, see section 63 (b)(1)(C) and (i) and section 
170(i). For rules relating to the detemination of, and the deduction 
for, amounts paid to maintain certain students as members of the 
taxpayer's household and treated under section 170(g) as paid for the 
use of an organization described in section 170(c) (2), (3), or (4), see 
Sec. 1.170A-2. For the reduction of any charitable contributions for 
interest on certain indebtedness, see section 170(f)(5) and Sec. 
1.170A-3. For a special rule relating to the computation of the amount 
of the deduction with respect to a charitable contribution of certain 
ordinary income or capital gain property, see section 170(e) and 
Sec. Sec. 1.170A-4 and 1.170A-4A. For rules for postponing the time for 
deduction of a charitable contribution of a future interest in tangible 
personal property, see section 170(a)(3) and Sec. 1.170A-5. For rules 
with respect to transfers in trust and of partial interests in property, 
see section 170(e), section 170(f) (2) and (3), Sec. Sec. 1.170A-4, 
1.170A-6, and 1.170A-7. For definition of the term section 170(b)(1)(A) 
organization, see Sec. 1.170A-9. For valuation of a remainder interest 
in real property, see section 170(f)(4) and the regulations thereunder. 
The deduction for charitable contributions is subject to verification by 
the district director.
    (b) Time of making contribution. Ordinarily, a contribution is made 
at the time delivery is effected. The unconditional delivery or mailing 
of a check which subsequently clears in due course will constitute an 
effective contribution on the date of delivery or mailing. If a taxpayer 
unconditionally delivers or mails a properly endorsed stock certificate 
to a charitable donee or the donee's agent, the gift is completed on the 
date of delivery or, if such certificate is received in the ordinary 
course of the mails, on the date of mailing. If the donor delivers the 
stock certificate to his bank or broker as the

[[Page 41]]

donor's agent, or to the issuing corporation or its agent, for transfer 
into the name of the donee, the gift is completed on the date the stock 
is transferred on the books of the corporation. For rules relating to 
the date of payment of a contribution consisting of a future interest in 
tangible personal property, see section 170(a)(3) and Sec. 1.170A-5.
    (c) Value of a contribution in property. (1) If a charitable 
contribution is made in property other than money, the amount of the 
contribution is the fair market value of the property at the time of the 
contribution reduced as provided in section 170(e)(1) and paragraph (a) 
of Sec. 1.170A-4, or section 170(e)(3) and paragraph (c) of Sec. 
1.170A-4A.
    (2) The fair market value is the price at which the property would 
change hands between a willing buyer and a willing seller, neither being 
under any compulsion to buy or sell and both having reasonable knowledge 
of relevant facts. If the contribution is made in property of a type 
which the taxpayer sells in the course of his business, the fair market 
value is the price which the taxpayer would have received if he had sold 
the contributed property in the usual market in which he customarily 
sells, at the time and place of the contribution and, in the case of a 
contribution of goods in quantity, in the quantity contributed. The 
usual market of a manufacturer or other producer consists of the 
wholesalers or other distributors to or through whom he customarily 
sells, but if he sells only at retail the usual market consists of his 
retail customers.
    (3) If a donor makes a charitable contribution of property, such as 
stock in trade, at a time when he could not reasonably have been 
expected to realize its usual selling price, the value of the gift is 
not the usual selling price but is the amount for which the quantity of 
property contributed would have been sold by the donor at the time of 
the contribution.
    (4) Any costs and expenses pertaining to the contributed property 
which were incurred in taxable years preceding the year of contribution 
and are properly reflected in the opening inventory for the year of 
contribution must be removed from inventory and are not a part of the 
cost of goods sold for purposes of determining gross income for the year 
of contribution. Any costs and expenses pertaining to the contributed 
property which are incurred in the year of contribution and would, under 
the method of accounting used, be properly reflected in the cost of 
goods sold for such year are to be treated as part of the costs of goods 
sold for such year. If costs and expenses incurred in producing or 
acquiring the contributed property are, under the method of accounting 
used, properly deducted under section 162 or other section of the Code, 
such costs and expenses will be allowed as deductions for the taxable 
year in which they are paid or incurred whether or not such year is the 
year of the contribution. Any such costs and expenses which are treated 
as part of the cost of goods sold for the year of contribution, and any 
such costs and expenses which are properly deducted under section 162 or 
other section of the Code, are not to be treated under any section of 
the Code as resulting in any basis for the contributed property. Thus, 
for example, the contributed property has no basis for purposes of 
determining under section 170(e)(1)(A) and paragraph (a) of Sec. 
1.170A-4 the amount of gain which would have been recognized if such 
property had been sold by the donor at its fair market value at the time 
of its contribution. The amount of any charitable contribution for the 
taxable year is not to be reduced by the amount of any costs or expenses 
pertaining to the contributed property which was properly deducted under 
section 162 or other section of the Code for any taxable year preceding 
the year of the contribution. This subparagraph applies only to property 
which was held by the taxpayer for sale in the course of a trade or 
business. The application of this subparagraph may be illustrated by the 
following examples:

    Example 1. In 1970, A, an individual using the calendar year as the 
taxable year and the accrual method of accounting, contributed to a 
church property from inventory having a fair market value of $600. The 
closing inventory at the end of 1969 properly included $400 of costs 
attributable to the acquisition

[[Page 42]]

of such property, and in 1969 A properly deducted under section 162 $50 
of administrative and other expenses attributable to such property. 
Under section 170(e)(1)(A) and paragraph (a) of Sec. 1.170A-4, the 
amount of the charitable contribution allowed for 1970 is $400 ($600-
[$600-$400]). Pursuant to this subparagraph, the cost of goods sold to 
be used in determining gross income for 1970 may not include the $400 
which was included in opening inventory for that year.
    Example 2. The facts are the same as in Example 1 except that the 
contributed property was acquired in 1970 at a cost of $400. The $400 
cost of the property is included in determining the cost of goods sold 
for 1970, and $50 is allowed as a deduction for that year under section 
162. A is not allowed any deduction under section 170 for the 
contributed property, since under section 170(e)(1)(A) and paragraph (a) 
of Sec. 1.170A-4 the amount of the charitable contribution is reduced 
to zero ($600-[$600-$0]).
    Example 3. In 1970, B, an individual using the calendar year as the 
taxable year and the accrual method of accounting, contributed to a 
church property from inventory having a fair market value of $600. Under 
Sec. 1.471-3(c), the closing inventory at the end of 1969 properly 
included $450 costs attributable to the production of such property, 
including $50 of administrative and other indirect expenses which, under 
his method of accounting, was properly added to inventory rather than 
deducted as a business expense. Under section 170(e)(1)(A) and paragraph 
(a) of Sec. 1.170A-4, the amount of the charitable contribution allowed 
for 1970 is $450 ($600-[$600-$450]). Pursuant to this subparagraph, the 
cost of goods sold to be used in determining gross income for 1970 may 
not include the $450 which was included in opening inventory for that 
year.
    Example 4. The facts are the same as in Example 3 except that the 
contributed property was produced in 1970 at a cost of $450, including 
$50 of administrative and other indirect expenses. The $450 cost of the 
property is included in determining the cost of goods sold for 1970. B 
is not allowed any deduction under section 170 for the contributed 
property, since under section 170(e)(1)(A) and paragraph (a) of Sec. 
1.170A-4 the amount of the charitable contribution is reduced to zero 
($600-[$600-$0]).
    Example 5. In 1970, C, a farmer using the cash method of accounting 
and the calendar year as the taxable year, contributed to a church a 
quantity of grain which he had raised having a fair market value of 
$600. In 1969, C paid expenses of $450 in raising the property which he 
properly deducted for such year under section 162. Under section 
170(e)(1)(A) and paragraph (a) of Sec. 1.170A-4, the amount of the 
charitable contribution in 1970 is reduced to zero ($600-[$600-$0]). 
Accordingly, C is not allowed any deduction under section 170 for the 
contributed property.
    Example 6. The facts are the same as in Example 5 except that the 
$450 expenses incurred in raising the contributed property were paid in 
1970. The result is the same as in Example 5, except the amount of $450 
is deductible under section 162 for 1970.

    (5) Transfers of property to an organization described in section 
170(c) which bear a direct relationship to the taxpayer's trade or 
business and which are made with a reasonable expectation of financial 
return commensurate with the amount of the transfer may constitute 
allowable deductions as trade or business expenses rather than as 
charitable contributions. See section 162 and the regulations 
thereunder.
    (d) Purchase of an annuity. (1) In the case of an annuity or portion 
thereof purchased from an organization described in section 170(c), 
there shall be allowed as a deduction the excess of the amount paid over 
the value at the time of purchase of the annuity or portion purchased.
    (2) The value of the annuity or portion is the value of the annuity 
determined in accordance with paragraph (e)(1)(iii) (b)(2) of Sec. 
1.101-2.
    (3) For determining gain on any such transaction constituting a 
bargain sale, see section 1011(b) and Sec. 1.1011-2.
    (e) Transfers subject to a condition or power. If as of the date of 
a gift a transfer for charitable purposes is dependent upon the 
performance of some act or the happening of a precedent event in order 
that it might become effective, no deduction is allowable unless the 
possibility that the charitable transfer will not become effective is so 
remote as to be negligible. If an interest in property passes to, or is 
vested in, charity on the date of the gift and the interest would be 
defeated by the subsequent performance of some act or the happening of 
some event, the possibility of occurrence of which appears on the date 
of the gift to be so remote as to be negligible, the deduction is 
allowable. For example, A transfers land to a city government for as 
long as the land is used by the city for a public park. If on the date 
of the gift the city does plan to use the land for a park and the 
possibility that the city will not use the land for a public park is so 
remote as to be negligible, A is entitled

[[Page 43]]

to a deduction under section 170 for his charitable contribution.
    (f) Special rules applicable to certain contributions. (1) See 
section 14 of the Wild and Scenic Rivers Act (Pub. L. 90-542, 82 Stat. 
918) for provisions relating to the claim and allowance of the value of 
certain easements as a charitable contribution under section 170.
    (2) For treatment of gifts accepted by the Secretary of State or the 
Secretary of Commerce, for the purpose of organizing and holding an 
international conference to negotiate a Patent Corporation Treaty, as 
gifts to or for the use of the United States, see section 3 of joint 
resolution of December 24, 1969 (Pub. L. 91-160, 83 Stat. 443).
    (3) For treatment of gifts accepted by the Secretary of the 
Department of Housing and Urban Development, for the purpose of aiding 
or facilitating the work of the Department, as gifts to or for the use 
of the United States, see section 7(k) of the Department of Housing and 
Urban Development Act (42 U.S.C. 3535), as added by section 905 of Pub. 
L. 91-609 (84 Stat. 1809).
    (g) Contributions of services. No deduction is allowable under 
section 170 for a contribution of services. However, unreimbursed 
expenditures made incident to the rendition of services to an 
organization contributions to which are deductible may constitute a 
deductible contribution. For example, the cost of a uniform without 
general utility which is required to be worn in performing donated 
services is deductible. Similarly, out-of-pocket transportation expenses 
necessarily incurred in performing donated services are deductible. 
Reasonable expenditures for meals and lodging necessarily incurred while 
away from home in the course of performing donated services also are 
deductible. For the purposes of this paragraph, the phrase while away 
from home has the same meaning as that phrase is used for purposes of 
section 162 and the regulations thereunder.
    (h) Payment in exchange for consideration--(1) Burden on taxpayer to 
show that all or part of payment is a charitable contribution or gift. 
No part of a payment that a taxpayer makes to or for the use of an 
organization described in section 170(c) that is in consideration for 
(as defined in Sec. 1.170A-13(f)(6)) goods or services (as defined in 
Sec. 1.170A-13(f)(5)) is a contribution or gift within the meaning of 
section 170(c) unless the taxpayer--
    (i) Intends to make a payment in an amount that exceeds the fair 
market value of the goods or services; and
    (ii) Makes a payment in an amount that exceeds the fair market value 
of the goods or services.
    (2) Limitation on amount deductible--(i) In general. The charitable 
contribution deduction under section 170(a) for a payment a taxpayer 
makes partly in consideration for goods or services may not exceed the 
excess of--
    (A) The amount of any cash paid and the fair market value of any 
property (other than cash) transferred by the taxpayer to an 
organization described in section 170(c); over
    (B) The fair market value of the goods or services the organization 
provides in return.
    (ii) Special rules. For special limits on the deduction for 
charitable contributions of ordinary income and capital gain property, 
see section 170(e) and Sec. Sec. 1.170A-4 and 1.170A-4A.
    (3) Certain goods or services disregarded. For purposes of section 
170(a) and paragraphs (h)(1) and (h)(2) of this section, goods or 
services described in Sec. 1.170A-13(f)(8)(i) or Sec. 1.170A-
13(f)(9)(i) are disregarded.
    (4) Donee estimates of the value of goods or services may be treated 
as fair market value--(i) In general. For purposes of section 170(a), a 
taxpayer may rely on either a contemporaneous written acknowledgment 
provided under section 170(f)(8) and Sec. 1.170A-13(f) or a written 
disclosure statement provided under section 6115 for the fair market 
value of any goods or services provided to the taxpayer by the donee 
organization.
    (ii) Exception. A taxpayer may not treat an estimate of the value of 
goods or services as their fair market value if the taxpayer knows, or 
has reason to know, that such treatment is unreasonable. For example, if 
a taxpayer knows, or has reason to know, that there is an error in an 
estimate provided by an organization described in section 170(c) 
pertaining to goods or services that have a readily ascertainable value, 
it is unreasonable for the

[[Page 44]]

taxpayer to treat the estimate as the fair market value of the goods or 
services. Similarly, if a taxpayer is a dealer in the type of goods or 
services provided in consideration for the taxpayer's payment and knows, 
or has reason to know, that the estimate is in error, it is unreasonable 
for the taxpayer to treat the estimate as the fair market value of the 
goods or services.
    (5) Examples. The following examples illustrate the rules of this 
paragraph (h).

    Example 1. Certain goods or services disregarded. Taxpayer makes a 
$50 payment to Charity B, an organization described in section 170(c), 
in exchange for a family membership. The family membership entitles 
Taxpayer and members of Taxpayer's family to certain benefits. These 
benefits include free admission to weekly poetry readings, discounts on 
merchandise sold by B in its gift shop or by mail order, and invitations 
to special events for members only, such as lectures or informal 
receptions. When B first offers its membership package for the year, B 
reasonably projects that each special event for members will have a cost 
to B, excluding any allocable overhead, of $5 or less per person 
attending the event. Because the family membership benefits are 
disregarded pursuant to Sec. 1.170A-13(f)(8)(i), Taxpayer may treat the 
$50 payment as a contribution or gift within the meaning of section 
170(c), regardless of Taxpayer's intent and whether or not the payment 
exceeds the fair market value of the goods or services. Furthermore, any 
charitable contribution deduction available to Taxpayer may be 
calculated without regard to the membership benefits.
    Example 2. Treatment of good faith estimate at auction as the fair 
market value. Taxpayer attends an auction held by Charity C, an 
organization described in section 170(c). Prior to the auction, C 
publishes a catalog that meets the requirements for a written disclosure 
statement under section 6115(a) (including C's good faith estimate of 
the value of items that will be available for bidding). A representative 
of C gives a copy of the catalog to each individual (including Taxpayer) 
who attends the auction. Taxpayer notes that in the catalog C's estimate 
of the value of a vase is $100. Taxpayer has no reason to doubt the 
accuracy of this estimate. Taxpayer successfully bids and pays $500 for 
the vase. Because Taxpayer knew, prior to making her payment, that the 
estimate in the catalog was less than the amount of her payment, 
Taxpayer satisfies the requirement of paragraph (h)(1)(i) of this 
section. Because Taxpayer makes a payment in an amount that exceeds that 
estimate, Taxpayer satisfies the requirements of paragraph (h)(1)(ii) of 
this section. Taxpayer may treat C's estimate of the value of the vase 
as its fair market value in determining the amount of her charitable 
contribution deduction.
    Example 3. Good faith estimate not in error. Taxpayer makes a $200 
payment to Charity D, an organization described in section 170(c). In 
return for Taxpayer's payment, D gives Taxpayer a book that Taxpayer 
could buy at retail prices typically ranging from $18 to $25. D provides 
Taxpayer with a good faith estimate, in a written disclosure statement 
under section 6115(a), of $20 for the value of the book. Because the 
estimate is within the range of typical retail prices for the book, the 
estimate contained in the written disclosure statement is not in error. 
Although Taxpayer knows that the book is sold for as much as $25, 
Taxpayer may treat the estimate of $20 as the fair market value of the 
book in determining the amount of his charitable contribution deduction.

    (i) [Reserved]
    (j) Exceptions and other rules. (1) The provisions of section 170 do 
not apply to contributions by an estate; nor do they apply to a trust 
unless the trust is a private foundation which, pursuant to section 
642(c)(6) and Sec. 1.642(c)-4, is allowed a deduction under section 170 
subject to the provisions applicable to individuals.
    (2) No deduction shall be allowed under section 170 for a charitable 
contribution to or for the use of an organization or trust described in 
section 508(d) or 4948(c)(4), subject to the conditions specified in 
such sections and the regulations thereunder.
    (3) For disallowance of deductions for contributions to or for the 
use of communist controlled organizations, see section 11(a) of the 
Internal Security Act of 1950, as amended (50 U.S.C. 790).
    (4) For denial of deductions for charitable contributions as trade 
or business expenses and rules with respect to treatment of payments to 
organizations other than those described in section 170(c), see section 
162 and the regulations thereunder.
    (5) No deduction shall be allowed under section 170 for amounts paid 
to an organization:
    (i) Which is disqualified for tax exemption under section 501(c)(3) 
by reason of attempting to influence legislation, or
    (ii) Which participates in, or intervenes in (including the 
publishing or

[[Page 45]]

distribution of statements), any political campaign on behalf of or in 
opposition to any candidate for public office.

For purposes of determining whether an organization is attempting to 
influence legislation or is engaging in political activities, see 
sections 501(c)(3), 501(h), 4911 and the regulations thereunder.
    (6) No deduction shall be allowed under section 170 for expenditures 
for lobbying purposes, the promotion or defeat of legislation, etc. See 
also the regulations under sections 162 and 4945.
    (7) No deduction for charitable contributions is allowed in 
computing the taxable income of a common trust fund or of a partnership. 
See sections 584(d)(3) and 703(a)(2)(D). However, a partner's 
distributive share of charitable contributions actually paid by a 
partnership during its taxable year may be allowed as a deduction in the 
partner's separate return for his taxable year with or within which the 
taxable year of the partnership ends, to the extent that the aggregate 
of his share of the partnership contributions and his own contributions 
does not exceed the limitations in section 170(b).
    (8) For charitable contributions paid by a nonresident alien 
individual or a foreign corporation, see Sec. 1.170A-4(b)(5) and 
sections 873, 876, 877, and 882(c), and the regulations thereunder.
    (9) For charitable contributions paid by a citizen of the United 
States or a domestic corporation entitled to the benefits of section 931 
(relating to income from sources within possessions of the United 
States), see section 931(d) and the regulations thereunder.
    (10) For carryover of excess charitable contributions in certain 
corporate acquisitions, see section 381(c)(19) and the regulations 
thereunder.
    (11) No deduction shall be allowed under section 170 for out-of-
pocket expenditures on behalf of an eligible organization (within the 
meaning of Sec. 1.501(h)-2(b)(1)) if the expenditure is made in 
connection with influencing legislation (within the meaning of section 
501(c)(3) or Sec. 56.4911-2), or in connection with the payment of the 
organization's tax liability under section 4911. For the treatment of 
similar expenditures on behalf of other organizations see paragraph 
(h)(6) of this section.
    (k) Effective date. In general this section applies to contributions 
made in taxable years beginning after December 31, 1969. Paragraph 
(j)(11) of this section, however, applies only to out-of-pocket 
expenditures made in taxable years beginning after December 31, 1976. In 
addition, paragraph (h) of this section applies only to payments made on 
or after December 16, 1996. However, taxpayers may rely on the rules of 
paragraph (h) of this section for payments made on or after January 1, 
1994.

(68A Stat. 58, 26 U.S.C. 170(a)(1); 68A Stat. 917, 26 U.S.C. 7805)

[T.D. 7207, 37 FR 20771, Oct. 4, 1972, as amended by T.D. 7340, 40 FR 
1238, Jan. 7, 1975; T.D. 7807, 47 FR 4510, Feb. 1, 1982; T.D. 8002, 49 
FR 50666, Dec. 31, 1984; T.D. 8308, 55 FR 35587, Aug. 31, 1990; T.D. 
8690, 61 FR 65951, Dec. 16, 1996]