Americans United for Separation of Church and State (AU) asked the Internal Revenue Service (IRS) to investigate Fifth Street Baptist Church in Richmond, Virginia for engaging in prohibited electioneering. The tax code prohibits certain organizations, including charities and churches, from intervening in any political campaign on behalf of, or in opposition to, any candidate for public office.

Relying on a Washington Post article, AU alleges that the church endorsed Virginia Gubernatorial Candidate Brian Moran during a church service on June 7.

According to the Washington Post, Rev. F. Todd Gray told the congregation during a service, "Brian is right on guns. He’s right on affirmative action. He’s right on taxes. He’s right on jobs. I’m not telling you who to vote for. I’m just telling you who I’m voting for. I’m voting for Brian Moran."

In AU’s Ietter to the IRS, Rev. Barry Lynn, AU’s Executive Director, highlighted a hypothetical situation in IRS Rev. Rul. 2007-41, in which using an exempt organization’s resources to engage in prohibited electioneering, while claiming the comments are that person’s personal opinion, was still deemed to be a violation.

The alleged endorsement occurred two days before the Virginia Gubernatorial primary, which AU also mentioned in its letter. Proximity to an election is a factor the IRS considers when determining if a violation occurred.