Charity loses exemption after failing to document insider transactions

Plain-English summary

The IRS revoked a charity's section 501(c)(3) exemption after it failed to provide records addressing possible private inurement and private benefit. The organization said its purpose was to house and train homeless, needy, and disabled people, and it operated through several disregarded business entities. Bank records raised questions about revenue omitted from its Form 990, transfers to a business owned by its founders, payments to their family members, housing used by the founders and relatives, officer compensation, cash withdrawals, and expenses that appeared personal. The revenue agent issued detailed information requests and extensions, but the organization did not produce the requested records. Its representative said a delayed Freedom of Information Act response made the review difficult and asked for more time. The IRS concluded that the organization had not carried its burden to show that it served public rather than private interests, and revoked exemption effective January 1 of the audited year.

Ruling snapshot

• Question: Did the organization establish through its records that it operated exclusively for exempt purposes and did not allow earnings to benefit insiders?
• Outcome: Revoked effective January 1 of a redacted year.
• Key authorities: IRC §§ 501(c)(3), 6001, and 6033; Treas. Reg. §§ 1.501(c)(3)-1 and 1.501(a)-1; Rev. Rul. 59-95

Full text (IRS public release)

Scanned document; transcription proofread from IRS OCR. Obvious scan misreads were corrected. Wording is otherwise verbatim.

DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
TEGE EO Examinations Mail Stop 4920 DAL
1100 Commerce St.
Dallas, Texas 75242

TAX EXEMPT AND
GOVERNMENT ENTITIES
DIVISION

Date: December 14, 2018

Release Number: 201922033
Release Date: 5/31/2019
UIL Code: 501.03-00

Tax Year Ending:
December 31, 20XX
Taxpayer Identification Number:

Person to Contact:
Employee Identification Number:

Employee Telephone Number:

CERTIFIED MAIL — RETURN RECEIPT
Dear

This is a final determination that you do not qualify for exemption from Federal income tax under
Internal Revenue Code (the “Code”) section 501(a) as an organization described in Code section
501(c)(3) effective January 1, 20XX. Your determination letter dated March 25, 20XX is revoked.

The revocation of your exempt status was made for the following reason(s):

Organizations described in section 501(c)(3) of the Internal Revenue Code and exempt from tax
under section 501(a) must be both organized and operated exclusively for exempt purposes. You
have failed to produce documents or otherwise establish that you are operated exclusively for
exempt purposes and that no part of your net earnings inure to the benefit of private shareholders
or individuals. You failed to respond to repeated reasonable requests to allow the Internal
Revenue Service to examine your records regarding your receipts, expenditures, or activities as
required by sections 6001 and 6033(a)(1) and the regulations thereunder.

Contributions to your organization are no longer deductible under IRC §170 after January 1, 20XX.

Organizations that are not exempt under section 501 generally are required to file federal income
tax returns and pay tax, where applicable. For further instructions, forms, and information, please

visit www.irs.gov.


If you decide to contest this determination, you may file an action for declaratory judgment under
the provisions of section 7428 of the Code in one of the following three venues: 1) United States
Tax Court, 2) the United States Court of Federal Claims, or 3) the United States District Court for
the District of Columbia. A petition or complaint in one of these three courts must be filed within
90 days from the date this determination letter was mailed to you. Please contact the clerk of the
appropriate court for rules and the appropriate forms for filing petitions for declaratory judgment
by referring to the enclosed Publication 892. You may write to the courts at the following
addresses:

United States Tax Court
400 Second Street, N.W.
Washington, D.C. 20217

U.S. Court of Federal Claims
717 Madison Place, N.W.
Washington, D.C. 20439

U.S. District Court for the District of Columbia
333 Constitution Ave., N.W.
Washington, D.C. 20001

Processing of income tax returns and assessments of any taxes due will not be delayed if you file
a petition for declaratory judgment under section 7428 of the Internal Revenue Code.

The Taxpayer Advocate Service (TAS) is an independent organization within the IRS that can help
protect your taxpayer rights. TAS can offer you help if your tax problem is causing a hardship, or
you’ve tried but haven’t been able to resolve your problem with the IRS. If you qualify for TAS
assistance, which is always free, TAS will do everything possible to help you. Visit
www.taxpayeradvocate.irs.gov or call 1-877-777-4778.

If you have any questions about this letter, please contact the person whose name and telephone
number are shown in the heading of this letter.

Sincerely,

Maria Hooke
Director, EO Examinations

Enclosure:
Publication 892

Date: 9/28/2018

Tax Exempt and Government Entities Taxpayer Identification Number:

Department of the Treasury
y Internal Revenue Service
IRS Exempt Organizations Examinations

Form:
990-N
Tax Year(s) Ended:
December 31, 20XX
Person to Contact:

Employee ID:
Telephone:
Fax:
Manager’s Contact Information:

Employee ID:

Telephone:
Response Due Date:

10/28/2018

CERTIFIED MAIL — Return Receipt Requested
Dear

Why you’re receiving this letter

We enclosed a copy of our audit report, Form 886-A, Explanation of Items, explaining that we
propose to revoke your tax-exempt status as an organization described in Internal Revenue
Code (IRC) Section 501(c)(3).

If you agree

If you haven't already, please sign the enclosed Form 6018, Consent to Proposed Action, and
return it to the contact person shown at the top of this letter. We'll issue a final adverse letter
determining that you aren't an organization described in IRC Section 501(c)(3) for the periods
above.

After we issue the final adverse determination letter, we'll announce that your organization is no
longer eligible to receive tax deductible contributions under IRC Section 170.

If you disagree

1. Request a meeting or telephone conference with the manager shown at the top of this
letter.

2. Send any information you want us to consider.

Letter 3618 (Rev. 9-2017)
Catalog Number 34809F

3. File a protest with the IRS Appeals Office. If you request a meeting with the manager or
send additional information as stated in 1 and 2, above, you'll still be able to file a protest
with IRS Appeals Office after the meeting or after we consider the information.

The IRS Appeals Office is independent of the Exempt Organizations division and
resolves most disputes informally. If you file a protest, the auditing agent may ask you to
sign a consent to extend the period of limitations for assessing tax. This is to allow the
IRS Appeals Office enough time to consider your case. For your protest to be valid, it
must contain certain specific information, including a statement of the facts, applicable
law, and arguments in support of your position. For specific information needed for a
valid protest, refer to Publication 892, How to Appeal an IRS Determination on Tax-
Exempt Status.

Fast Track Mediation (FTM) referred to in Publication 3498, The Examination Process,
generally doesn’t apply now that we’ve issued this letter.

4. Request technical advice from the Office of Associate Chief Counsel (Tax Exempt
Government Entities) if you feel the issue hasn’t been addressed in published precedent
or has been treated inconsistently by the IRS.

If you’re considering requesting technical advice, contact the person shown at the top of
this letter. If you disagree with the technical advice decision, you will be able to appeal
to the IRS Appeals Office, as explained above. A decision made in a technical advice
memorandum, however, generally is final and binding on Appeals.

If we don't hear from you
If you don't respond to this proposal within 30 calendar days from the date of this letter, we'll
issue a final adverse determination letter.

Contacting the Taxpayer Advocate Office is a taxpayer right

The Taxpayer Advocate Service (TAS) is an independent organization within the IRS that can
help protect your taxpayer rights. TAS can offer you help if your tax problem is causing a
hardship, or you've tried but haven't been able to resolve your problem with the IRS. If you
qualify for TAS assistance, which is always free, TAS will do everything possible to help you.
Visit www.taxpayeradvocate.irs.gov or call 877-777-4778.

For additional information
You can get any of the forms and publications mentioned in this letter by visiting our website at
www.irs.gov/forms-pubs or by calling 800-TAX-FORM (800-829-3676).

If you have questions, you can contact the person shown at the top of this letter.

Sincerely,

Maria Hooke
Director, Exempt Organizations
Examinations

Enclosures:

2 Letter 3618 (Rev. 9-2017)
Catalog Number 34809F

Form 886-A
Form 6018
Form 4621-A

3 Letter 3618 (Rev. 9-2017)
Catalog Number 34809F

Form 886-A Department of the Treasury — Internal Revenue Service
(May 2017) Explanations of Items
Name of taxpayer Tax Identification Number (last 4 digits) | Year/Period ended
20XX
Issues

Whether the taxpayer has demonstrated through the production of records that it is organized and operated
exclusively for exempt purposes under 501(c)(3) of the Internal Revenue Code.

Facts

Per the State of , the EO is incorporated in the state of :
The Articles of Incorporation were filed with the state on 10/17/20XX. The entity type is stated as “ordinary business —
Non-Stock.” The effective date is 10/17/20XX. is stated as the resident agent. The Taxpayer filed

Articles of Incorporation as a Tax Exempt Nonstock Corporation. The following representation are made in the
Articles.

The name of the organization is . The purpose for which the corporation is formed is

stated as, “To house and train homeless, needy and disabled individuals to be productive contributors to society.”

The resident agent is . The number of directors is three. The names of the Directors are
, and

Article VIII states the following:

“No part of the net earnings of the corporation shall inure to the benefit of, or be distributable to its members, trustees,
officers, or other private persons, except that the corporation shall be authorized and empowered to pay reasonable
compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth
in Article Third hereof. No substantial part of the activities of the corporation shall be the carrying on of propaganda,
or otherwise attempting to influence legislation, and the corporation shall not participate in or intervene in (including
the publishing or distribution of statements) any political campaign on behalf of or in opposition to any candidate for
public office. Notwithstanding any other provision of these articles, the corporation shall not carry any other activities
not permitted to be carried on (a) by a corporation exempt from federal income tax under Section 501(c)(3) of the
Internal Revenue code, or the corresponding section of any future federal tax code, or (b) by a corporation,
contributors to which are deductible under Section 170(c)(2) of the Internal Revenue Code, or the corresponding
section of any future federal tax code.

The Determination Application, (Form 1023) is signed by , , as the President of the organization. It
is dated 12/19/XX. The application is date stamped as being received in on 1/11/20XX. The business
address of the organization is stated as ,in The application states

that bylaws have been adopted. The application indicates. that all required organization documents have been
adopted. The application states that none of the officers are related through family or business relationships. It also,
states that that the applicant does not have a business relationship with any of officers.

In Part V of the application, “Compensation and Other Financial Arrangements with Officers, Directors, Trustees,
Employees, and Independent Contractors,” the following information is requested.

The names, titles, and mailing addresses of all of your officers, directors, and trustees. For each person listed, state
their total annual compensation, or proposed compensation, for all services to the organization, whether as an officer,
employee, or other position. Use actual figures, if available. Enter “none” if no compensation is or will be paid.

The information the Taxpayer reported in response to this request is stated below:

Catalog Number 20810W Page 1 www.irs.gov Form 886-A (Rev. 5-2017)

Form 886-A Department of the Treasury — Internal Revenue Service
(May 2017) Explanations of Items
Name of taxpayer Tax Identification Number (last 4 digits) | Year/Period ended
20XX

Compensation Amount (annual actual or estimated)

Name Title Address Compensation
Chairman , $0
Vice Chairman , $0
Treasurer , $0

Also in Part V of the application, the Taxpayer asserts that no officer, Director, Trustee, employee, or independent
Contractor will receive more than $0 per year. The applicant also asserts that no independent contractor will receive

more than $0 per year.
Other assertions made in Part V of the application are stated below.

2b. No business relationship exists between any of the founders/directors/officers.

3b. None of the founders/directors/officers receive compensation from any other organization that are related
to the founders/directors/officers through common control.

4. In establishing compensation for the founders/directors/officers, the Taxpayer stated that regarding
compensation, the organization will follow a conflict of interest policy, that it will approve compensation
arrangements before paying compensation, the organization will document in writing the date and terms of
the approved compensation arrangements, a record in writing will be maintained of the decisions of
founders/directors/officers regarding compensation arrangements, and compensation arrangements will
be based on compensation paid by similarly situated organizations and current compensation surveys.

5a. The organization has adopted a conflict of interest policy.

6a. The organization will not compensate founders/directors/officers through non-fixed payments.

7a. The organization will not buy any goods or services from the founders/directors/officers.

8a. There will be no leases, contracts, or other agreements between the organization and its
founders/directors/officers.

The organization has adopted a conflict of interest policy. The stated purpose of the conflict of interest statement is
articulated in Article I. It states the following:
“The purpose of the conflict of interest policy is to protect interest
when it is contemplating entering into a transaction or arrangement that might benefit the private interest of an
officer or director of the Organization or might result in a possible excess benefit transactions. This policy is
intended to supplement but not replace any applicable state and federal laws governing conflict of interest
applicable to nonprofit and charitable organizations.”

Article III of the Conflict of Interest Policy provides procedures for the following:

1. Duty to disclose
2. Determining whether a conflict of interest exists.
3. Procedures for addressing the conflict of interest
4. Violations of the conflict of interest policy.

Article IV states that there will be records of all proceedings.

Catalog Number 20810W Page 2 www.irs.gov Form 886-A (Rev. 5-2017)

Form 886-A Department of the Treasury — Internal Revenue Service
(May 2017) Explanations of Items
Name of taxpayer Tax Identification Number (last 4 digits) | Year/Period ended
20XX

Article V — Compensation, states the following:
a. A voting member to the governing board who receives compensation, directly or indirectly, from the Organization
for services is precluded from voting on matters pertaining to that member’s compensation.

Determination letter (947) is dated 3/25/20XX.This letter recognizes the Taxpayer as a 501(c)(3) organization with a
foundation code of 170(b)(1)(A)(vi). Effective date is 10/17/20XX. Per the letter, Compliance Guide for 501(c)(3)
Public Charities was included with this letter. This letter is signed by , Director, EO Rulings and Agreements.

REVENUE

The taxpayer initially filed a Form 990-N for the 20XX tax year. On this return, it is stated that gross receipts were not
greater than $0. Subsequently, the taxpayer filed an amended Form 990 return. Form 990 for the year 20XX states
its revenue and expense items as follows:

The taxpayer states its revenue for the year on the amended return as $0.
It appears that the totality of the organization’s funding comes from the following organizations. See below:

Funding 20XX

$0
$0
Total $0

In Part IV, question 33 of the return the Taxpayer indicates that the organization owns 0% of disregarded entities.
In Schedule R, these disregarded entities are identified as and . Per
the 20XX 990 return for the year under exam, these organizations provided 0% of the Taxpayer's funding.

In the course of the examination, other disregarded entities were identified. Per the initial interview with
the taxpayer specifically identified 0 business entities that were gifted to . These are

, , and . presented signed documents
indicating the gifting of these organizations. A review of the banking records of the organization and its disregarded
entities show that the amount stated as revenue is incorrect. When one reviews the bank statement for all the
disregarded entities and removes intercompany transfers, the amount of revenue received by
is higher than that stated on the 20XX Form 990. See detail below.

Entity Year Taxable Bank Deposits
20XX $0
20XX $0
20XX $0
20XX $0
20XX $0
20XX $0

Total $0

Less Stipends paid (0)
Total Adjusted Revenue $0

Catalog Number 20810W Page 3 www.irs.gov Form 886-A (Rev. 5-2017)

Form 886-A Department of the Treasury — Internal Revenue Service
(May 2017) Explanations of Items
Name of taxpayer Tax Identification Number (last 4 digits) | Year/Period ended
20XX
Less amount reported on 990 (0)
Unreported Revenue on 990 $0
The founders of are also the owners of a business entity. This organization is
Each of the founders of the organization reports income and expense from this
business on Schedule C of their 1040 returns for 20XX. Since there are owners of this business, this income

should have properly been reported as partnership income on a Form 1065. A review of the 20XX bank statements
for

shows that funds from and its disregarded entities were transferred into the
account of , a business wholly owned by the founders of . See schedule below:
20XX Transfers to
Transfer from $0
Transfers from $0
Transfer from $0
Transfer from $0

Total $0

The RA has not been able to establish a business reason for these transfers. No contracts exist that would explain
these transfers to the business entity owned by the founders. Nor has the organization provided an explanation for
these transfers.

A review of bank records also shows that funds were transferred to the parents of . No W-2 or 1099s
were issued related to these transfers. These are summarized below:

Payment to Family Members
From WF #0000 & #0000
Date Amount
1/10/20XX $0
1/15/20XX $0
2/2/20XX $0
2/3/20XX $0
2/22/20XX $0
3/2/20XX $0
5/1/20XX $0
2/10/20XX $0
2/10/20XX $0

Total $0

The business address of in 20XX was ,in ,

Catalog Number 20810W Page 4 www.irs.gov Form 886-A (Rev. 5-2017)

Form 886-A Department of the Treasury — Internal Revenue Service
(May 2017) Explanations of Items

Name of taxpayer Tax Identification Number (last 4 digits) | Year/Period ended

20XX

This is a house in a residential neighborhood. This house was rented by . Per the Form
1040s of the founders, this is also their residencies. Also, parents and brother lived at this location.
There is no indication that any of these individuals reimbursed for providing this housing.

Expenses are stated on the 20XX Form 990 return as follows:

990 Expenses
Legal $0
Accounting $0
Lobbying $0
Advertising and Prom. $0
Office Expense $0
IT $0
Occupancy $0
Travel $0
Conferences $0
Interest $0
Insurance $0
Resident Supplies $0
Licensing Fees $0
Pest control, $0
Maintenance $0
Charitable contributions $0
Other expense $0

$0

In an effort to document the expenses of the organization and the use of the organization’s funds, the Revenue Agent
issued Information Document Requests (IDRs). IDRs 2 -12 were issued on 5/10/XX. These IDRs are attached to the
Revenue Agent Report. The purpose of each IDR is listed below.

IDR #2 sought an explanation of the organizations apparent understatement of its income. Banking records indicated
that the organization did not report $0 of income on its Form 990 return.

IDR #3 sought information on the officer's compensation, as banking records indicated that compensation of the
officers was misstated on the Form 990 return. IDR #3 also sought information as to how officer compensation was
determined and reported on the 990 return and the 1040 returns. It also sought information as to how the
organization reported wages of its workers, as there were no W-2s or 1099s issued.

IDR #4 sought information regarding the transfer of funds to an officers’ owned business.

IDR #5 sought documentation relating to the officer's expenses at restaurants.

IDR #6 sought information regarding the organization’s payment to relatives of the CEO of the organization and also
sought information regarding payment to the relatives of the COO of the organization.

Catalog Number 20810W Page 5 www.irs.gov Form 886-A (Rev. 5-2017)

Form 886-A Department of the Treasury — Internal Revenue Service
(May 2017) Explanations of Items
Name of taxpayer Tax Identification Number (last 4 digits) | Year/Period ended
20XX
IDR #7 sought information regarding travel expenses of the officers of the organization.
IDR #8 sought information regarding the hotel expenses of the officers.
IDR #9 sought information regarding automobile and gas expenses of the officers.
IRD #10 sought information regarding convenience store expenses.
IDR #11 sought information relating to expenses at liquor stores, charges, and other expense items that

appear to be personal in nature.
IDR #12 sought information regarding the cash withdraws totaling $0

The Revenue Agent worked with the taxpayer’s power of attorney to secure this information. The Revenue Agent
provided the power of attorney with all bank statements that were in the Revenue Agents procession. The power of
attorney indicated that he was in the process of securing this information, but was having issues obtaining the
financial records of the organization. On 7/30/XX, the Revenue Agent issued an extension notice granting the
taxpayer 15 additional business days to submit the requested information. On 8/21/XX, the Revenue Agent issued a
second extension of 15 days to submit the requested information. On 9/12/XX, the Revenue Agent issued a
Delinquency Notice to the taxpayer stating that if the requested information was not received by 9/25/XX, the Revenue
Agent would propose revocation of the organization's exempt status.

At present, the Revenue Agent has not received the requested information. It should be noted that the requested
records that the Revenue Agent sought were all records that belonged to the organization and should have been
easily available to them. Currently, the Power of Attorney is seeking these records through a FOIA request from the
Small Business/Self-Employed (SBSE) Division of the Internal Revenue Service, as these documents were
summoned from banks pursuant to an SBSE examination of the officers. Also, the taxpayer could have provided this
Revenue Agent answers to most questions by reviewing their internal record keeping, i.e. the General Ledger, Income
Statement and journal entries.

Law

26 U.S. Code § 6033 - Returns by exempt organizations
(a) Organizations required to file
(1) In general
Except as provided in paragraph (3), every organization exempt from taxation under section 501(a) shall
file an annual return, stating specifically the items of gross income, receipts, and disbursements, and
such other information for the purpose of carrying out the internal revenue laws as the Secretary may by
forms or regulations prescribe, and shall keep such records, render under oath such statements, make
such other returns, and comply with such rules and regulations as the Secretary may from time to time
prescribe; except that, in the discretion of the Secretary, any organization described in section 401(a)
may be relieved from stating in its return any information which is reported in returns filed by the
employer which established such organization.

(b) Certain organizations described in section 501(c)(3) Every organization described in section 501(c)(3)
which is subject to the requirements of subsection (a) shall furnish annually information, at such time and
in such manner as the Secretary may by forms or regulations prescribe, setting forth—

(9) such other information with respect to direct or indirect transfers to, and other direct or indirect
transactions and relationships with, other organizations described in section 501(c) (other than
paragraph (3) thereof) or section 527 as the Secretary may require to prevent—

Catalog Number 20810W Page 6 www.irs.gov Form 886-A (Rev. 5-2017)

Form 886-A Department of the Treasury — Internal Revenue Service
(May 2017) Explanations of Items
Name of taxpayer Tax Identification Number (last 4 digits) | Year/Period ended
20XX

(A) diversion of funds from the organization’s exempt purpose, or
(B) misallocation of revenues or expenses,

Section 501(c)(3) of the Code exempts from federal income tax organizations organized and operated exclusively for
charitable, educational, and other exempt purposes, provided that no part of the organization's net earnings inures to
the benefit of any private shareholder or individual.

Section 1.501(c)(3)-1(a)(1) of the regulations provides that in order to be exempt as an organization described in
section 501(c)(3) of the Code, the organization must be one that is both organized and operated exclusively for one or
more of the purposes specified in that section.

Section 1.501(c)(3)-1(c)(1) of the regulations provides that an organization will not be regarded as operated
exclusively for exempt purposes if more than an insubstantial part of its activities is not in furtherance of exempt
purposes.

Section 1.501(c)(3)-1(d)(ii) of the regulations provides that an organization is not organized or operated exclusively for
one or more exempt purposes unless it serves a public rather than a private interest. Thus, it is necessary for an
organization to establish that it is not organized or operated for the benefit of private interests such as designated
individuals, the creator or his family, shareholders of the organization, or persons controlled, directly or indirectly, by
such private interests.

The presence of a single substantial nonexempt purpose can destroy the exemption regardless of the number or
importance of exempt purposes. Better Bus. Bureau v. United States, 326 U.S. 279. 283, 90 L. Ed. 67, 66 S. Ct. 112
(1945); Am. Campaign Acad. v. Commissioner, 92 T.C. 1053, 1065 (1989); see also Old Dominion Box Co., Inc. v.
United States, 477 F2d. 340 (4th Cir. 1973), cert. denied, 413 US 910 (1973) ("operating for the benefit of private
parties who are not members of a charitable class constitutes a substantial nonexempt purpose"). When an
organization operates for the benefit of private interests, such as designated individuals, the creator or his family, or
persons directly or indirectly controlled by such private interests, the organization by definition does not operate
exclusively for exempt purposes. Am. Campaign Acad. v. Commissioner, supra at 1065-1066.

In B.S.W. Group, Inc. v. Commissioner, 70 T.C. 352 (1978), the courts ruled the organization did not qualify for
exemption under IRC section 501(c)(3) because it was not operated exclusively for charitable, educational, or
scientific purposes.

In order to be recognized as exempt under IRC section 501(c)(3), the organization is prohibited from:

1) Permitting its net earnings to inure to the benefit of private individuals or operating in a way where more than an
insubstantial part of its activities further private versus public purposes

2) Engaging substantially in legislative activity

3) Participating or intervening in any political activity

Treas. Reg. section 1.501(c)(3)-1(c)(2) states that an organization is not exclusively operated for one or more exempt
purposes if its net earnings inure in whole or in part to the benefit of private shareholders or individuals.

Treas. Reg. section 1.501(a)-1(c) defines a "private shareholder or individual" as "persons having a personal and
private interest in the activities of an organization."

If the private benefit to an individual or a group of individuals is greater than the public benefit, the private benefit is
considered substantial. A substantial private benefit can result in revocation of exempt status.

Even a small amount of private inurement is fatal to exemption. In Spokane Motorcycle Club v. U.S., 222 F. Supp. 151

Catalog Number 20810W Page 7 www.irs.gov Form 886-A (Rev. 5-2017)

Form 886-A Department of the Treasury — Internal Revenue Service
(May 2017) Explanations of Items
Name of taxpayer Tax Identification Number (last 4 digits) | Year/Period ended
20XX

(E.D. Wash. 1963), net profits were found to inure to private individuals where refreshments, goods and services
amounting to $825 (representing some 8% of gross revenues) were furnished to members.
In John Marshall Law School and John Marshall University v. United States, 228 Ct. Cl. 902 (1981), 81-2 U.S.T.C.
9514, involve classic channeling of an organization's net earnings to those in control. The court sustained the
Service's revocation of the school's exempt status based on inurement. The court found inurement existed when the
school provided the following to family members who were its officers:

• Interest free loans

• Unsecured loans

• Payments for non-business travel

• Payments for non-business entertainment

• Personal health spa membership

In United Cancer Council, Inc. v. Commissioner, 165 F.3d 1173 (1999), the appeals court stated the inurement clause
of IRC section 501(c)(3) interprets the phrase "private individual or shareholder" as an insider of the charity. The court
further said a charity must not improperly pass its earnings to its founder, board members, their families, or anyone
else described as an insider who is the equivalent of an owner or manager. The insider could be an employee such as
an office manager.

Taxpayer Position

The taxpayer through its power of attorney asserts that it has been unable to produce the records requested by the
Revenue Agent. In a letter dated 9/11/20XX, the power of attorney states the following:

As previously mentioned, on January 15, 20XX my office sent to the Internal Revenue Service
(IRS) a Freedom of Information Act (FOIA) request for all the financial documentation it has
relating to this taxpayer. Unfortunately, we only received our first partial response to this
request on or about July 25, 20XX, totaling 0 pages. While we are very pleased to finally
receive a response to our FOIA request, its unexpectedly large number of documents has
required the taxpayer to expend significant time and resources going through them.
Considering this complex review process, it appears that the taxpayer will not be able to
properly respond to your information request for at least another thirty (30) days. I am sorry for
this delay. Notwithstanding the foregoing, however, please know that from my review thus far
of the taxpayer's books and records, including those provided to my office by the IRS pursuant
to the FOIA request, I believe the taxpayer will be able to provide all the records you are
requesting, but just not by the current due date.

The power of attorney also states the following regarding one of the organization’s disregarded entities.

Further, I would like to bring to your attention an important note regarding your Form 4564,
which I noticed upon review. Apparently, is listed therein as an entity
owned by the taxpayer. It is my understanding the assignment/transfer of
to the taxpayer was never actually finalized. The only entities assigned/transferred to
were and _ both of which are correctly listed on your

Form 4564.

Government Position

The government's position is that the taxpayer has not demonstrated that it has not engaged in specific acts of
inurement. The government position holds that the taxpayer is not in compliance with Section 1.501(c)(3)-1(d)(ii) of
the regulations. This regulation provides that an organization is not organized or operated exclusively for one or more

Catalog Number 20810W Page 8 www.irs.gov Form 886-A (Rev. 5-2017)

Form 886-A Department of the Treasury — Internal Revenue Service
(May 2017) Explanations of Items
Name of taxpayer Tax Identification Number (last 4 digits) | Year/Period ended
20XX

exempt purposes unless it serves a public rather than a private interest. Thus, it is necessary for an organization to
establish that it is not organized or operated for the benefit of private interests such as designated individuals, the
creator or his family, shareholders of the organization, or persons controlled, directly or indirectly, by such private
interests.

While the taxpayer contends that it is attempting to gather these records, it should be noted that the records which the
Revenue Agent has requested are the records belonging to the taxpayer.

The Revenue Agent has raised legitimate questions regarding the organization's use of its funds. The Revenue Agent
has on multiple occasions requested documentation that would allow the Revenue Agent to determine if the
organization’s founders have engaged in acts of inurement. The efforts of the Revenue Agent to secure this
information from the taxpayers has not been successful. Reg. 1.501(c)(3)-1(d)(1)(ii) states that the burden of proof is
upon the organization to establish that it is not organized or operated for the benefit of private interests. This
requirement applies equally to inurement and private benefit issues.

Considering that the taxpayer is unable or unwilling to establish that it is not organized or operated for the benefit of
private interests, the Revenue Agent is proposing revocation of the organization's exempt status as of January 1,
20XX, the first day of the year under audit.

Conclusion

Organizations described in I.R.C. § 501(c)(3) and exempt under section 501(a) must be both organized and operated
exclusively for exempt purposes. You have failed to produce documents or otherwise establish that you are operated
exclusively for exempt purposes and that no part of your net earnings inures to the benefit of private shareholders or
individuals. You failed to respond to repeated reasonable requests to allow the Internal Revenue Service to examine
your records regarding your receipts, expenditures, or activities as required by I.R.C. § 6001, 6033(a)(1) and Rev. Rul.
59-95, 1959-1 C.B. 627. As such, the Service proposes revocation of your exempt status as of January 1, 20XX.

Catalog Number 20810W Page 9 www.irs.gov Form 886-A (Rev. 5-2017)