A recent Fifth Circuit holding in Memorial Hermann has caught the attention of lawyers in our space, with some wondering if the tax law rules on how 501(c)(4)s operate may change. But what did the court really say, and how should 501(c)(4) advocacy organizations react? On this special holiday edition of the pod, we are joined by Larry Gold of Trister Ross Schadler and Gold to understand what this case says and what it means for (c)(4)s in 2025 and beyond. 

Attorneys for this episode 

Tim Mooney 

Susan Finkle Sourlis 

Larry Gold, Trister Ross Schadler and Gold

 

Show notes 

• What is Memorial Hermann? 

• Very basics of the case 

• Basics of the holding 

• Where does this court’s ruling apply? 

• 501(c)(4) organizations must exclusively operate for the social welfare,  how is that interpreted to mean primarily, and the limit on items that do not as social welfare as secondary activity. We frequently talk about one of those secondary activities a lot – partisan political work. But this case focuses on another thing – can you explain why commercial activity does not promote social welfare?  

• The concern raised by some is the court’s move to a smaller insubstantial standard for commercial activity may also apply to political activity, limiting the amount advocacy groups can engage in. How does the law treat commercial activity and political activity differently, and does that distinction matter here for other courts that may be addressing this? 

• Do (c)(4)s in the Fifth Circuit that engage in partisan political advocacy need to change what they’re doing or how much they’re doing? What about (c)(4)s outside of the Fifth Circuit? 

• There’s another layer to all of this with (c)(4)s that have filed Form 1024s accepted by the IRS – can you explain what that is and why filing a 1024 now may be a good idea for some (c)(4)s that haven’t yet? 

• What’s happening next with this case? 

• What’s your take on how various media outlets have presented this case – do you think they’ve helped or muddied the waters? 

• On a scale of 1 to 10 where 1 is a yawn and 10 is metaphysical crisis, where are we now with Memorial Hermann for (c)(4)s?  

 

Resources - Tim 

The Rules of the Game