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Publication Title

Washington University Law Quarterly

Abstract

The central thesis of this Article is that the criterion that can and should be used to judge exempt status in these cases of “commercial similarity” is whether the organization provides access to services for previously-underserved populations or provides specific services to the majority population that otherwise are not provided by the private sector. Using “enhancing access” as the main criterion in judging an organization’s entitlement to exemption makes considerable sense; after all, a major rationale for granting charitable tax exemption is to recognize the pluralism-enhancing nature of such enterprises. Organizations that provide expanded access to services for those unable to obtain them as a result of economic, geographic, or other constraints enhance the pluralism objective; exemption becomes the reward for doing so. The access criterion also fits nicely with the major economic explanations for exemption, which posit that exemption helps overcome an undersupply of services at the intersection of private-market failure and government failure. Moreover, making access a central theme of exemption would force organizations to explain their mission in access terms—a process that in and of itself could help focus such organizations on why they differ from for-profit counterparts and what they should do to highlight that difference Part II reviews how IRS rulings and court decisions in the healthcare area already contain access-based language and concepts. Part III expands the analysis of Part II to other cases in which exempt organizations arguably do things similar to for-profit counterparts such as community-development organizations, public-interest law firms, and certain kinds of “arts” organizations. Part IV then presents the policy case for using access as a primary criterion for judging exemption by arguing that the criterion is consistent with both economic and sociological explanations for exemption and the existence of nonprofit organizations. Part V explores the practicalities of an access-based test by developing in more detail the doctrinal implementation of such a test and analyzing how using access as a primary exemption criterion would affect the analysis of exempt status for a variety of organizations that arguably compete with for-profit providers of similar services. Again this part focuses heavily on health care organizations, but also applies an access criterion to organizations outside the health sector. The Article concludes that using “enhancing access” as a primary criterion for exempt status would simplify current doctrine, would still be consistent with theoretical underpinnings of exemption, and would help provide a focus point for the mission of nonprofit organizations that provide commercial-type services.

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