Kemp Klein

IRS Viewpoint of the Tax Treatment of Crowdfunding

I remember Professor Geoffrey Lanning in my first tax law course in law school, explaining that a base premise under the Internal Revenue Code (the “Code”) is that gross income includes all amounts received from any source, unless there is a specific exclusion provided elsewhere in the Code.

Crowdfunding is a recent phenomenon in which one engages in the funding of a project or cause by gathering on-line contributions, many of them small, from a large group of contributors. All of us in Detroit remember the crowdfunding drive of a few years ago to provide an automobile to a Detroit resident (known in the media as the “Walking Man”) who walked dozens of miles every day to and from work, because he could not afford transportation. Other examples of the use of crowdfunding have been to raise capital for community development projects, the arts, technology and business purposes.

In many instances, it has been used as an alternative to venture capital funding.

As was the case with the Walking Man, often times the contributors received nothing in return but the satisfaction of helping. In other instances, small rewards of some type are provided and sometimes there is the promise of a return of the contributions with interest if a campaign is successful. Equity interests might also be issued for contributions.

Since there are no pertinent cases or Internal Revenue Service rulings on the issue, one must look to general principles of the tax law to determine whether the proceeds from crowdfunding are included in gross income for the purpose of income taxation.

In a recent information letter, the IRS weighed in on this topic and concluded as a general rule that money received without an offsetting liability, such as a repayment obligation, that is neither a capital contribution in exchange for stock or some other equity interest nor a gift, is includable in income.

The IRS position would be that funds raised from crowdfunding would generally be includable in income if they are not:

(1) loans that must be repaid;
(2) capital contributed to an entity in exchange for an equity interest in the entity; or
(3) gifts made out of detached generosity and without any quid pro quo.

Additionally, such revenues would be includable in income to the extent they are received for services rendered or are gains from the sale of property.

Thus, in any crowdfunding effort all the facts and circumstances surrounding the effort will need to be examined to determine the tax impact of the particular situation. Not too surprisingly, one might expect the IRS position to often be that the proceeds are taxable income.

For further information regarding these matters, please contact Mr. Castelli at 248 740 5668 or via email.