II 

118TH CONGRESS 

1ST SESSION S. 120 

To amend the Internal Revenue Code of 1986 to allow a credit against 

tax for charitable donations to nonprofit organizations providing education scholarships to qualified elementary and secondary students. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 26, 2023 

Mr. CASSIDY (for himself, Mr. CORNYN, Mr. DAINES, Mr. TUBERVILLE, Mr. 

WICKER, Mr. BARRASSO, Mr. SCOTT of South Carolina, Mrs. BLACKBURN, Mr. BRAUN, Mr. SCOTT of Florida, Mr. YOUNG, Mr. BOOZMAN, 

Mr. HAWLEY, Mr. TILLIS, and Mrs. BRITT) introduced the following bill; 

which was read twice and referred to the Committee on Finance 

A BILL 

To amend the Internal Revenue Code of 1986 to allow a 

credit against tax for charitable donations to nonprofit 

organizations providing education scholarships to qualified elementary and secondary students. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Educational Choice 

5 for Children Act’’. 


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1 SEC. 2. TAX CREDIT FOR CONTRIBUTIONS TO SCHOLAR2 SHIP GRANTING ORGANIZATIONS. 

3 (a) CREDIT FOR INDIVIDUALS.— 

4 (1) IN GENERAL.—Subpart A of part IV of sub5 chapter A of chapter 1 of the Internal Revenue Code 

6 of 1986 is amended by inserting after section 25E 

7 the following new section: 

8 ‘‘SEC. 25F. QUALIFIED ELEMENTARY AND SECONDARY EDU9 CATION SCHOLARSHIPS. 

10 ‘‘(a) ALLOWANCE OF CREDIT.—In the case of an in11 dividual who is a citizen or resident of the United States 

12 (as defined in section 7701(a)(9)), there shall be allowed 

13 as a credit against the tax imposed by this chapter for 

14 the taxable year an amount equal to the amount of quali15 fied contributions made by the taxpayer during the taxable 

16 year. 

17 ‘‘(b) AMOUNT OF CREDIT.—The credit allowed under 

18 subsection (a) in any taxable year shall not exceed an 

19 amount equal to the greater of— 

20 ‘‘(1) 10 percent of the adjusted gross income of 

21 the taxpayer for the taxable year, or 

22 ‘‘(2) $5,000. 

23 ‘‘(c) DEFINITIONS.—For purposes of this section— 

24 ‘‘(1) ELIGIBLE STUDENT.—The term ‘eligible 

25 student’ means an individual who— 


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1 ‘‘(A) is a member of a household with an 

2 income which is not greater than 300 percent 

3 of the area median gross income (as such term 

4 is used in section 42), and 

5 ‘‘(B) is eligible to enroll in a public ele6 mentary or secondary school. 

7 ‘‘(2) QUALIFIED CONTRIBUTION.—The term 

8 ‘qualified contribution’ means a charitable contribu9 tion (as defined by section 170(c)) to a scholarship 

10 granting organization in the form of cash or market11 able securities for the purpose of providing scholar12 ships for qualified elementary or secondary edu13 cation expenses of eligible students. 

14 ‘‘(3) QUALIFIED ELEMENTARY OR SECONDARY

15 EDUCATION EXPENSE.—The term ‘qualified elemen16 tary or secondary education expense’ has the same 

17 meaning given the term ‘qualified higher education 

18 expenses’ under paragraph (3) of section 529(e), ex19 cept that— 

20 ‘‘(A) such paragraph shall be applied— 

21 ‘‘(i) by substituting ‘elementary school 

22 or secondary school (as such terms are de23 fined in section 8101 of the Elementary 

24 and Secondary Education Act of 1965 (20 


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1 U.S.C. 7801))’ for ‘eligible educational in2 stitution’ each place it appears, and 

3 ‘‘(ii) in subparagraph (B) thereof, by 

4 substituting ‘such school’ for ‘such institu5 tion’ each place it appears, and 

6 ‘‘(B) such term shall include tutoring ex7 penses for student academic needs, including 

8 for learning loss. 

9 ‘‘(4) SCHOLARSHIP GRANTING ORGANIZA10 TION.—The term ‘scholarship granting organization’ 

11 means any organization— 

12 ‘‘(A) which— 

13 ‘‘(i) is described in section 501(c)(3) 

14 and exempt from tax under section 501(a), 

15 and 

16 ‘‘(ii) is not a private foundation, 

17 ‘‘(B) whose substantial purpose is to pro18 vide scholarships for qualified elementary or 

19 secondary education expenses of eligible stu20 dents, 

21 ‘‘(C)(i) which meets the requirements of 

22 subsection (d), or 

23 ‘‘(ii) which, pursuant to State law, was 

24 able, as of the date of the enactment of the 

25 Educational Choice for Children Act, to receive 


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1 contributions that are eligible for a State tax 

2 credit if such contributions are used by the or3 ganization to provide scholarships to individual 

4 elementary and secondary students, including 

5 scholarships for attending private schools, and 

6 ‘‘(D) which, separate from any other funds 

7 or contributions received by such organization, 

8 maintains and accounts for any contributions 

9 made by any person for the purpose of pro10 viding scholarships for qualified elementary or 

11 secondary education expenses of eligible stu12 dents. 

13 ‘‘(d) REQUIREMENTS FOR SCHOLARSHIP GRANTING

14 ORGANIZATIONS.— 

15 ‘‘(1) IN GENERAL.—An organization meets the 

16 requirements of this subsection if— 

17 ‘‘(A) such organization provides scholar18 ships to 2 or more students, provided that not 

19 all such students attend the same school, 

20 ‘‘(B) such organization does not provide 

21 scholarships for any expenses other than quali22 fied elementary or secondary education ex23 penses, 

24 ‘‘(C) such organization provides a scholar25 ship to eligible students with a priority for— 


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1 ‘‘(i) students awarded a scholarship 

2 the previous school year, and 

3 ‘‘(ii) after application of clause (i), 

4 any such students who have a sibling who 

5 was awarded a scholarship from such orga6 nization, 

7 ‘‘(D) such organization does not earmark 

8 or set aside contributions for scholarships on 

9 behalf of any particular student, 

10 ‘‘(E) such organization takes appropriate 

11 steps to verify the annual household income and 

12 family size of eligible students to whom it 

13 awards scholarships, and limits them to a mem14 ber of a household for which the income does 

15 not exceed the amount established under sub16 section (c)(1)(A), 

17 ‘‘(F) such organization— 

18 ‘‘(i) obtains from an independent cer19 tified public accountant annual financial 

20 and compliance audits, and 

21 ‘‘(ii) certifies to the Secretary (at such 

22 time, and in such form and manner, as the 

23 Secretary may prescribe) that the audit de24 scribed in clause (i) has been completed, 

25 and 


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1 ‘‘(G) no officer or board member of such 

2 organization has been convicted of a felony. 

3 ‘‘(2) INDEPENDENT CERTIFIED PUBLIC AC4 COUNTANT.—For purposes of paragraph (1)(F), the 

5 term ‘independent certified public accountant’ 

6 means, with respect to an organization, a certified 

7 public accountant who is not a person described in 

8 section 465(b)(3)(A) with respect to such organiza9 tion or any employee of such organization. 

10 ‘‘(3) PROHIBITION ON SELF-DEALING.— 

11 ‘‘(A) IN GENERAL.—A scholarship grant12 ing organization may not award a scholarship 

13 to any disqualified person. 

14 ‘‘(B) DISQUALIFIED PERSON.—For pur15 poses of this paragraph, a disqualified person 

16 shall be determined pursuant to rules similar to 

17 the rules of section 4946. 

18 ‘‘(e) DENIAL OF DOUBLE BENEFIT.—Any qualified 

19 contribution for which a credit is allowed under this sec20 tion shall not be taken into account as a charitable con21 tribution for purposes of section 170. 

22 ‘‘(f) CARRYFORWARD OF UNUSED CREDIT.— 

23 ‘‘(1) IN GENERAL.—If the credit allowable 

24 under subsection (a) for any taxable year exceeds 

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1 able year reduced by the sum of the credits allowable 

2 under this subpart (other than this section, section 

3 23, and section 25D), such excess shall be carried to 

4 the succeeding taxable year and added to the credit 

5 allowable under subsection (a) for such taxable year. 

6 ‘‘(2) LIMITATION.—No credit may be carried 

7 forward under this subsection to any taxable year 

8 following the fifth taxable year after the taxable year 

9 in which the credit arose. For purposes of the pre10 ceding sentence, credits shall be treated as used on 

11 a first-in first-out basis. 

12 ‘‘(g) APPLICATION OF VOLUME CAP.—A qualified 

13 contribution shall be taken into account under this section 

14 only if such contribution is not in excess of the volume 

15 cap established under section 3 of the Educational Choice 

16 for Children Act.’’. 

17 (2) CLERICAL AMENDMENT.—The table of sec18 tions for subpart A of part IV of subchapter A of 

19 chapter 1 of such Code is amended by inserting 

20 after the item relating to section 25E the following 

21 new item: 

‘‘Sec. 25F. Qualified elementary and secondary education scholarships.’’. 

22 (b) CREDIT FOR CORPORATIONS.— 

23 (1) IN GENERAL.—Subpart D of part IV of 

24 subchapter A of chapter 1 of the Internal Revenue 


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1 Code of 1986 is amended by adding after section 

2 45Z the following: 

3 ‘‘SEC. 45AA. CONTRIBUTIONS TO SCHOLARSHIP GRANTING 

4 ORGANIZATIONS. 

5 ‘‘(a) GENERAL RULE.—For purposes of section 38, 

6 in the case of a corporation, the education scholarship 

7 credit determined under this section for the taxable year 

8 is the aggregate amount of qualified contributions for the 

9 taxable year. 

10 ‘‘(b) AMOUNT OF CREDIT.—The credit allowed under 

11 subsection (a) for any taxable year shall not exceed 5 per12 cent of the taxable income (as defined in section 

13 170(b)(2)(D)) of the corporation for such taxable year. 

14 ‘‘(c) QUALIFIED CONTRIBUTIONS.—For purposes of 

15 this section, the term ‘qualified contribution’ has the 

16 meaning given such term under section 25F. 

17 ‘‘(d) DENIAL OF DOUBLE BENEFIT.—No deduction 

18 shall be allowed under any provision of this chapter for 

19 any expense for which a credit is allowed under this sec20 tion. 

21 ‘‘(e) APPLICATION OF VOLUME CAP.—A qualified 

22 contribution shall be taken into account under this section 

23 only if such contribution is not in excess of the volume 

24 cap established under section 3 of the Educational Choice 

25 for Children Act.’’. 


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1 (2) CONFORMING AMENDMENTS.—Section 

2 38(b) of such Code is amended by striking ‘‘plus’’ at 

3 the end of paragraph (39), by striking the period 

4 and inserting ‘‘, plus’’ at the end of paragraph (40), 

5 and by adding at the end the following new para6 graph: 

7 ‘‘(41) the education scholarship credit deter8 mined under section 45AA(a).’’. 

9 (3) CLERICAL AMENDMENT.—The table of sec10 tions for subpart D of part IV of subchapter A of 

11 chapter 1 of such Code is amended by adding at the 

12 end the following new item: 

‘‘Sec. 45AA. Contributions to scholarship granting organizations.’’. 

13 (c) FAILURE OF SCHOLARSHIP GRANTING ORGANI14 ZATIONS TO MAKE DISTRIBUTIONS.— 

15 (1) IN GENERAL.—Chapter 42 of the Internal 

16 Revenue Code of 1986 is amended by adding at the 

17 end the following new subchapter: 

18 ‘‘Subchapter I—Scholarship Granting 

19 Organizations 

‘‘Sec. 4969. Failure to distribute receipts. 

20 ‘‘SEC. 4969. FAILURE TO DISTRIBUTE RECEIPTS. 

21 ‘‘(a) IN GENERAL.—In the case of any scholarship 

22 granting organization (as defined in section 25F) which 

23 has been determined by the Secretary to have failed to 

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1 able year, any contribution made to such organization dur2 ing the first taxable year beginning after the date of such 

3 determination shall not be treated as a qualified contribu4 tion (as defined in section 25F(c)(2)) for purposes of sec5 tions 25F and 45AA. 

6 ‘‘(b) REQUIREMENT.—The requirement described in 

7 this subsection is that the amount of receipts of the schol8 arship granting organization for the taxable year which 

9 are distributed before the distribution deadline with re10 spect to such receipts shall not be less than the required 

11 distribution amount with respect to such taxable year. 

12 ‘‘(c) DEFINITIONS.—For purposes of this section— 

13 ‘‘(1) REQUIRED DISTRIBUTION AMOUNT.— 

14 ‘‘(A) IN GENERAL.—The required distribu15 tion amount with respect to a taxable year is 

16 the amount equal to 100 percent of the total re17 ceipts of the scholarship granting organization 

18 for such taxable year— 

19 ‘‘(i) reduced by the sum of such re20 ceipts that are retained for reasonable ad21 ministrative expenses for the taxable year 

22 or are carried to the succeeding taxable 

23 year under subparagraph (C), and 


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1 ‘‘(ii) increased by the amount of the 

2 carryover under subparagraph (C) from 

3 the preceding taxable year. 

4 ‘‘(B) SAFE HARBOR FOR REASONABLE AD5 MINISTRATIVE EXPENSES.—For purposes of 

6 subparagraph (A)(i), if the percentage of total 

7 receipts of a scholarship granting organization 

8 for a taxable year which are used for adminis9 trative purposes related to activities for pro10 viding scholarships for qualified elementary or 

11 secondary education expenses of eligible stu12 dents (as such terms are defined in section 

13 25F(c)) is equal to or less than 10 percent, 

14 such expenses shall be deemed to be reasonable 

15 for purposes of such subparagraph. 

16 ‘‘(C) CARRYOVER.—With respect to the 

17 amount of the total receipts of a scholarship 

18 granting organization with respect to any tax19 able year, an amount not greater than 15 per20 cent of such amount may, at the election of 

21 such organization, be carried to the succeeding 

22 taxable year. 

23 ‘‘(2) DISTRIBUTIONS.—The term ‘distribution’ 

24 includes amounts which are formally committed but 

25 not distributed. A formal commitment described in 


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1 the preceding sentence may include contributions set 

2 aside for eligible students for more than one year. 

3 ‘‘(3) DISTRIBUTION DEADLINE.—The distribu4 tion deadline with respect to receipts for a taxable 

5 year is the first day of the third taxable year fol6 lowing the taxable year in which such receipts are 

7 received by the scholarship granting organization.’’. 

8 (2) CLERICAL AMENDMENT.—The table of sub9 chapters for chapter 42 of such Code is amended by 

10 adding at the end the following new item: 

‘‘SUBCHAPTER I. SCHOLARSHIP GRANTING ORGANIZATIONS’’. 

11 SEC. 3. VOLUME CAP. 

12 (a) ALLOCATION.— 

13 (1) IN GENERAL.—For purposes of sections 

14 25F(g) and 45AA(e) of the Internal Revenue Code 

15 of 1986 (as added by this Act), the volume cap ap16 plicable with respect to both such sections shall be 

17 $10,000,000,000 for calendar year 2024 and each 

18 subsequent year thereafter, with such amount to be 

19 allocated as follows: 

20 (A) $20,000,000 shall be allocated to each 

21 State (as defined in section 7701(a)(10) of the 

22 Internal Revenue Code of 1986), with such 

23 amount to be made available, in the manner de24 scribed in subsection (b), for— 


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1 (i) any individual residing in such 

2 State to claim the credit allowed under sec3 tion 25F of the Internal Revenue Code of 

4 1986 with respect to any qualified con5 tributions (as defined in such section) 

6 made by such individual during any tax7 able year beginning during such calendar 

8 year, and 

9 (ii) any corporation created or orga10 nized in such State to claim the credit de11 termined under section 45AA of such Code 

12 with respect to any qualified contributions 

13 made by such corporation during any tax14 able year beginning during such calendar 

15 year. 

16 (B) With respect to the amount remaining 

17 after the allocation under subparagraph (A), 

18 such amount (as adjusted pursuant to para19 graph (3)) shall be made available, in the man20 ner described in subsection (b), for— 

21 (i) any individual to claim the credit 

22 allowed under section 25F of the Internal 

23 Revenue Code of 1986 with respect to any 

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1 vidual during any taxable year beginning 

2 during such calendar year, and 

3 (ii) any corporation to claim the credit 

4 determined under section 45AA of such 

5 Code with respect to any qualified con6 tributions made by such corporation during 

7 any taxable year beginning during such 

8 calendar year. 

9 (2) CARRYOVER.—The amount of any allotment 

10 to a State under paragraph (1)(A) for any calendar 

11 year which is not claimed by taxpayers described in 

12 such paragraph during such calendar year shall be 

13 added to the allotment provided under paragraph 

14 (1)(B) for the subsequent calendar year. 

15 (3) INCREASE IN NATIONWIDE VOLUME CAP.— 

16 For purposes of paragraph (1)(B), if the Secretary 

17 determines during any calendar year that the 

18 amount of qualified contributions made during such 

19 calendar year is equal to or greater than 90 percent 

20 of the total amount made available under such para21 graph for such calendar year, such amount shall be 

22 increased by an amount equal to 5 percent of the 

23 total amount made available under such paragraph 

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1 crease to remain in effect for the subsequent cal2 endar year. 

3 (b) FIRST-COME, FIRST-SERVE.—For purposes of 

4 applying the volume cap under this section, such volume 

5 cap shall be applied based on a first-come, first-serve 

6 basis, as determined based on the date on which the tax7 payer made the qualified contribution. 

8 (c) REAL-TIME INFORMATION.—For purposes of this 

9 section, the Secretary of the Treasury (or the Secretary’s 

10 delegate) shall develop a system to track the amount of 

11 qualified contributions made during the calendar year for 

12 which a credit may be claimed under section 25F or 45AA 

13 of the Internal Revenue Code of 1986, with such informa14 tion to be updated in real time. 

15 SEC. 4. EXEMPTION FROM GROSS INCOME FOR SCHOLAR16 SHIPS FOR QUALIFIED ELEMENTARY OR SEC17 ONDARY EDUCATION EXPENSES OF ELIGIBLE 

18 STUDENTS. 

19 (a) IN GENERAL.—Part III of subchapter B of chap20 ter 1 of the Internal Revenue Code of 1986 is amended 

21 by inserting before section 140 the following new section: 


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1 ‘‘SEC. 139J. SCHOLARSHIPS FOR QUALIFIED ELEMENTARY 

2 OR SECONDARY EDUCATION EXPENSES OF 

3 ELIGIBLE STUDENTS. 

4 ‘‘(a) IN GENERAL.—In the case of an individual, 

5 gross income shall not include any amounts provided to 

6 any dependent of such individual pursuant to a scholar7 ship for qualified elementary or secondary education ex8 penses of an eligible student which is provided by a schol9 arship granting organization. 

10 ‘‘(b) DEFINITIONS.—In this section, the terms ‘quali11 fied elementary or secondary education expense’, ‘eligible 

12 student’, and ‘scholarship granting organization’ have the 

13 same meaning given such terms under section 25F(c).’’. 

14 (b) CONFORMING AMENDMENT.—The table of sec15 tions for part III of subchapter B of chapter 1 of the In16 ternal Revenue Code of 1986 is amended by inserting be17 fore the item relating to section 140 the following new 

18 item: 

‘‘Sec. 139J. Scholarships for qualified elementary or secondary education expenses of eligible students.’’. 

19 SEC. 5. ORGANIZATIONAL AND PARENTAL AUTONOMY. 

20 (a) PROHIBITION OF CONTROL OVER SCHOLARSHIP

21 ORGANIZATIONS.— 

22 (1) IN GENERAL.— 

23 (A) TREATMENT.—A scholarship granting 

24 organization shall not, by virtue of participation 


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1 under any provision of this Act or any amend2 ment made by this Act, be regarded as acting 

3 on behalf of any governmental entity. 

4 (B) NO GOVERNMENTAL CONTROL.—Noth5 ing in this Act, or any amendment made by this 

6 Act, shall be construed to permit, allow, encour7 age, or authorize any Federal, State, or local 

8 government entity, or officer or employee there9 of, to mandate, direct, or control any aspect of 

10 any scholarship granting organization. 

11 (C) MAXIMUM FREEDOM.—To the extent 

12 permissible by law, this Act, and any amend13 ment made by this Act, shall be construed to 

14 allow scholarship granting organizations max15 imum freedom to provide for the needs of the 

16 participants without governmental control. 

17 (2) PROHIBITION OF CONTROL OVER NON-PUB18 LIC SCHOOLS.— 

19 (A) NO GOVERNMENTAL CONTROL.—Noth20 ing in this Act, or any amendment made by this 

21 Act, shall be construed to permit, allow, encour22 age, or authorize any Federal, State, or local 

23 government entity, or officer or employee there24 of, to mandate, direct, or control any aspect of 


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1 any private or religious elementary or secondary 

2 education institution. 

3 (B) NO EXCLUSION OF PRIVATE OR RELI4 GIOUS SCHOOLS.—No Federal, State, or local 

5 government entity, or officer or employee there6 of, shall impose or permit the imposition of any 

7 conditions or requirements that would exclude 

8 or operate to exclude educational expenses at 

9 private or religious elementary and secondary 

10 education institutions from being considered 

11 qualified elementary or secondary education ex12 penses. 

13 (C) NO EXCLUSION OF QUALIFIED EX14 PENSES DUE TO INSTITUTION’S RELIGIOUS

15 CHARACTER OR AFFILIATION.—No Federal, 

16 State, or local government entity, or officer or 

17 employee thereof, shall exclude, discriminate 

18 against, or otherwise disadvantage any elemen19 tary or secondary education institution with re20 spect to qualified elementary or secondary edu21 cation expenses at that institution based in 

22 whole or in part on the institution’s religious 

23 character or affiliation, including religiously 

24 based or mission-based policies or practices. 


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1 (3) PARENTAL RIGHTS TO USE SCHOLAR2 SHIPS.—No Federal, State, or local government en3 tity, or officer or employee thereof, shall disfavor or 

4 discourage the use of scholarships granted by par5 ticipating scholarship granting organizations for 

6 qualified elementary or secondary education ex7 penses at private or nonprofit elementary and sec8 ondary education institutions, including faith-based 

9 schools. 

10 (4) PARENTAL RIGHT TO INTERVENE.—In any 

11 action filed in any State or Federal court which 

12 challenges the constitutionality (under the constitu13 tion of such State or the Constitution of the United 

14 States) of any provision of this Act (or any amend15 ment made by this Act), any parent of an eligible 

16 student who has received a scholarship from a schol17 arship granting organization shall have the right to 

18 intervene in support of the constitutionality of such 

19 provision or amendment. To avoid duplication of ef20 forts and reduce the burdens placed on the parties 

21 to the action, the court in any such action may re22 quire interveners taking similar positions to file joint 

23 papers or to be represented by a single attorney at 

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1 half of any State which is a defendant in such ac2 tion. 

3 (b) DEFINITIONS.—For purposes of this section, the 

4 terms ‘‘eligible student’’, ‘‘scholarship granting organiza5 tion’’, and ‘‘qualified elementary or secondary education 

6 expense’’ shall have the same meanings given such terms 

7 under section 25F(c) of the Internal Revenue Code of 

8 1986 (as added by section 2(a) of this Act). 

9 SEC. 6. EFFECTIVE DATE. 

10 The amendments made by this Act shall apply to tax11 able years beginning after December 31, 2023. 

Æ 


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