Private Letter Ruling
Number: 202339029
Internal Revenue Service
May 4, 2023
   
   
   
Department of the Treasure
Internal Revenue Service
Tax Exempt and Government Entities
   
Release Number: 202339029
Release Date: 9/29/2023
UIL Code: 501.03-00
   
Date:
05/04/2023
Taxpayer ID number (last 4 digits):
Form:
Tax periods ended:
Person to contact:
Name:
ID number:
Telephone:
Fax:
Lest day to file petition with United States
Tax Court:
08/02/2023
   
CERTIFIED MAIL - Return Receipt Requested
   
Dear ******:
   
Why we are sending you this letter   
This is a final determination that you don't qualify for exemption from federal income tax under Internal Revenue Code (IRC) Section 501(a) as an organization described in IRC Section 501(c)(3), effective ******, ******. Your determination letter dated ******, ******, is revoked.
   
Our adverse determination as to your exempt status was made for the following reasons: Organizations described in IRC Section 501(c)(3) and exempt under IRC Section 501(a) must be both organized and operated exclusively for charitable, educational, or ether exempt purposes within the meaning of RC Section 501(c)(3). You have not demonstrated that you are operated exclusively for charitable, educational, or other exempt purposes within the meaning of IRC Section 501(c)(3) 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 IRC sections 6001, 6033(a)(1) and Rev.Rul. 59-95, 1959-1 C.B. 627. Further, you were involuntarily dissolved by the State of ****** for violations of charitable solicitation and consumer protection state laws, demonstrating that you are not operated exclusively for exempt purposes.
   
Organizations that are not exempt under IRC Section 501 generally are required to file federal income tax returns and pay tax, where applicable. For further instructions, forms and information please visit IRS.gov.
   
Contributions to your organization are no longer deductible under IRC Section 170.
   
What you must do if you disagree with this determination   
If you want to contest our final determination, you have 90 days from the date this determination letter was mailed to you to file a petition or complaint in one of the three federal courts listed below.
   
How to file your action for declaratory judgment   
If you decide to contest this determination, you can file an action for declaratory judgment under the provisions of Section 7428 of the Code in either:
   
- The United States Tax Court,
- The United States Court of Federal Claims, or
- The United States District Court for the District of Columbia
   
You must file a petition or complaint in one of these three courts within 90 days from the date we mailed this determination letter to you. You can download a fillable petition or complaint form and get information about filing at each respective court's website listed below or by contacting the Office of the Clerk of the Court at one of the addresses below. Be sure to include a copy of this letter and any attachments and the applicable filing fee with the petition or complaint.
   
You can eFile your completed U.S. Tax Court petition by following the instructions and user guides available on the Tax Court website at ustaxcourt.gov/dawson.html. You will need to register for a DAWSON account to do so. You may also file your petition at the address below:
   
United States Tax Court   
400 Second Street, NW
Washington, DC 20217
ustaxcourt.gov   
   
The websites of the U.S. Court of Federal Claims and the U.S. District Court for the District of Columbia contain instructions about how to file your completed complaint electronically. You may also file your complaint at one of the addresses below:
   
US Court of Federal Claims   
717 Madison Place, NW
Washington, DC 20439
uscfc.uscourts.gov   
   
US District Court for the District of Columbia   
333 Constitution Avenue, NW
Washington. DC 20001
dcd.uscourts.gov   
   
Processing of income tax returns and assessments of any taxes due will not be delayed if you file a petition for declaratory judgment under IRC Section 7428.
   
We'll notify the appropriate state officials (as permitted by law) of our determination that you aren't an organization described in IRC Section 501(c)(3).
   
Information about the IRS Taxpayer Advocate Service   
The IRS office whose phone number appears at the top of the notice can best address and access your tax information and help get you answers. However, you may be eligible for free help from the Taxpayer Advocate Service (TAS) if you can't resolve your tax problem with the IRS, or you believe an IRS procedure just isn't working as it should. TAS is an independent organization within the IRS that helps taxpayers and protects taxpayer rights. Contact your local Taxpayer Advocate Office at:
   
Internal Revenue Service
Taxpayer Advocate Office
   
Or call TAS at 877-777-4778. For more information about TAS and your rights under the Taxpayer Bill of Rights, go to taxpayeradvocate.IRS.gov. Do not send your federal court pleading to the TAS address listed above. Use the applicable federal court address provided earlier in the letter. Contacting TAS does not extend the time to file an action for declaratory judgment.
   
Where you can find more information   
Enclosed are Publication 1, Your Rights as a Taxpayer, and Publication 594, The IRS Collection Process, for more comprehensive information.
   
Find tax forms or publications by visiting IRS.gov/forms or calling 800-TAX-FORM (800-829-3676). If you have questions, you can call the person shown at the top of this letter.
   
If you prefer to write, use the address shown at the top of this letter. Include your telephone number, the best time to call, and a copy of this letter.
   
You may fax your documents to the fax number shown above, using either a fax machine or online fax service. Protect yourself when sending digital data by understanding the fax service's privacy and security policies.
   
Keep the original letter for your records.
   
Sincerely,
   
   
for Lynn A. Brinkley
Director, Exempt Organizations Examinations
   
Enclosures:
Publication 1
Publication 594
Publication 892
   
   
   
Department of the Treasury
Internal Revenue Service
Tax Exempt and Government Entities
   
Date:
November 15, 2022
Taxpayer ID number:
Form:
Tax periods ended:
Person to contact:
Name:
ID number:
Telephone:
Fax:
Address:
Manager's contact information:
Name:
ID number:
Telephone:
Response due date:
December 15, 2022
   
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.
   
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.taxpayeradrocate.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,
   
****** for
   
Lynn A. Brinkley
Acting Director
Exempt Organizations Examinations
   
Enclosures:
Form 886-A and Attachments
Form 6018
   
   
   
                          
   
Issue:   
   
Whether ****** (******) continues to qualify for exemption from Federal income tax under section 501(a) of the Internal Revenue Code (Code) as a charitable organization described in Code section 501(c)(3).
   
Facts:   
   
****** was incorporated in the State of ****** on ******, ******, under the state's nonprofit corporation law. ****** organizing document, the Articles of Incorporation, was filed by ****** with the state and provides for the following corporate purpose in Article 4:
   
   
Article 5 of ****** Articles of Incorporation includes an attachment labeled Exhibit A which provides that the organization is organized exclusively for charitable, religious, educational, and scientific purposes under section 501(c)(3) of the Code, or corresponding section of any future federal tax code. The same attachment to ****** organizing document provides for a dissolution clause intended to allow ****** to satisfy the organizational requirements for Federal exemption.
   
****** Articles of Incorporation identifies the incorporator as ****** with a mailing address of ******, ******, ******. ****** is also appointed as the non-commercial registered agent of the corporation. According to Article 2C, the street address of the registered agent of the corporation (a P.O. Box only is not acceptable by the state) is ******, ******, ******.
   
The address in ******, ****** furnished by ****** as his street address corresponds to a United Parcel Service (UPS) retail store. According to information posted by UPS on the Internet, the retail store located at ****** in ******, ****** offers the following mailbox services:
   
- A real street address in lieu of a P.O. Box.
- Package and mail receipt notifications
- Mail holding and forwarding
- Call-in mail check
   
A copy of the pertinent website content posted by or on behalf of the UPS store located in ****** in******, ****** is appended as Exhibit A.
   
In ******, Form 1023, Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code, with the Internal Revenue Service (IRS). The Form 1023 application is signed by ****** as the Managing Director according to the declaration on page 12 of the Form 1023 application. ****** is the only person listed in Part V of Form 1023, which requires applicant organizations to list the names, titles and mailing addresses of all officers, directors, and trustees.
   
The mailing address provided for ****** on the Form 1023 is the same address provided for the organization which reads as follows:
   
   
The Form 1023 application is accompanied by a conformed copy of ****** Articles of Incorporation and several attachments providing narrative responses to certain questions in Form 1023. According to the attachment providing a narrative description of past, present, and planned activities as requested in Part IV of Form 1023, ****** states the following:
   
   
Based on its Form 1023 application and accompanying records, the IRS issued a favorable determination letter dated ******, ******, granting ****** recognition of exemption under section 501(c)(3) of the Code effective ******, ******. ****** was classified as a public charity under sections 509(a)(1) and 170(b)(1)(A)(vi) of the Code based on its planned fundraising programs and projected financial support.
   
IRS records show that ****** filed Form 990-N, Electronic Notice (e-Postcard), beginning with the ****** calendar year. ****** filed Form 990-N in lieu of a Form 990 or Form 990-EZ return. ****** indicated on Form 990-N that its gross receipts are normally $ ******, ****** or less.
   
In ******, the Tax Exempt and Governmental Entities (TE/GE) division of the IRS selected ****** for examination of its books and records covering the ****** calendar year. The notice of examination package, which is dated ******, ******, consists of IRS letter #6031, Form 4564, Information Document Request (IDR), Publication 1, Your Rights as a Taxpayer, Notice 609, Privacy Act Notice, and Publication 3498-A, The Examination Process (Audits by Mail). The notice of examination package was mailed to ****** at the last known address on file for the organization, which is as follows:
   
   
****** changed its address from the one based in ******, ****** to the current address in ******, ****** when it filed its ****** Form 990-N with the IRS in ******. The ****** address furnished by ****** also corresponds to a UPS retail store which offers mailbox services described above. A copy of the pertinent website content posted by or on behalf of the UPS store located in ****** is appended as Exhibit B.
   
As noted on page 1 of the 2-page IDR issued with the examination notice, the examination of ****** books and records is intended to verify that the organization:
   
1. Operates in accordance with section 501(c)(3) of the Code
   
2. Is eligible to file Form 990-N based on gross receipts, and
   
3. Filed all required returns including information returns.
   
As part of standard audit procedures, the IRS examiner requested that ****** furnish certain records and information needed to determine whether the organization is operating in furtherance of charitable and other exempt purposes described in section 501(c)(3) of the Code. IDR #1 issued to ****** on ******, ******, requests copies of the following records and information covering the ****** calendar year under examination:
   
- Chart of accounts
   
- General ledger
   
- Adjusted trial balance
   
- Cash disbursements journal.
   
- Monthly bank statements for ****** primary operating (checking) account together with canceled checks or check images furnished by the bank.
   
- Monthly statements for all credit cards that may have been issued to ******.
   
- Minutes of meetings held by ****** Board of Directors and committees of the Board.
   
- Internal policies and procedures regarding the handling and recording of cash donations.
   
- Lease agreements and other information relating to any office or other facility used by to conduct activities.
   
- Contracts and other arrangements with individuals and/or organizations which solicit and raise funds for ****** including, but not limited to, professional fundraising organizations.
   
- The organization's website address, if any, and the identity of the party that hosts the website. If no website is maintained, ****** was requested to provide copies of records which describe the activities conducted in ******. In the absence of formal marketing and fundraising materials, ****** was asked to provide a statement describing the activities, services, programs, and events conducted by the organization in ******.
   
- Information regarding the accounting software used by ****** for preparation of its books and records.
   
The response due date for IDR #1 was ******, ******. ****** did not respond to the IDR or otherwise contact the IRS examiner or the group manager by the due date. In accordance with established IRS procedures, a follow-up "Delinquency Notice" letter was issued to ****** with a copy of IDR #1 on ******, ******, with a response due date of ******, ******. The delinquency notice states, in part, that if the organization does not fully respond to the IDR by the response due date, the IRS will propose revocation of ****** exempt status. The delinquency notice was not returned by the post office as undeliverable.
   
****** did not respond to the delinquency notice or otherwise contact the IRS examiner. Neither the IRS examiner nor the group manager subsequently received any of the requested records and information from ****** or any other officer or director of ******.
   
Despite its name, there is no evidence that ****** is an affiliate or chapter of the ****** network of charities that operate within the United States. The national ****** organization maintains a website which allows users to search for local chapters. ****** is not among the local or state chapters listed. The ****** Form 990-N filed by ****** with the IRS in ****** does not identify a website address in section E.
   
A search of the online corporate database maintained by the State of ******, which provides information on the status of entities incorporated under ****** state law, shows that ****** was subject to a court-ordered termination in ******. A copy of the entity status search for ****** secured from the state's online filing system is appended as Exhibit C. The court ordered judgment against ****** and two related defendants, which was based on the Motion for Summary Judgment filed by the Attorney General for the State of ******, as plaintiff, was also made available online and is appended as Exhibit D.
   
As Exhibit D indicates, the District Court granted the plaintiff's Motion for Summary Judgment finding, in part, that ****** had violated both the state's charities law and consumer fraud law, by engaging in deceptive acts or practices, fraud, false pretense, false promises, or misrepresentations, with the intent that others rely thereon, in connection with the solicitation of charitable contributions in the State of ******. The court also ordered that ****** be involuntarily dissolved pursuant to the provisions of state law. The Order for Judgment was filed by the Court on ******, ******, which corresponds to the inactive date shown on the entity status summary appended as Exhibit C.
   
Applicable Law:   
   
Section 501(c)(3) of the Code provides that an organization organized and operated exclusively for charitable or educational purposes is exempt from Federal income tax, provided no part of its net earnings inures to the benefit of any private shareholder or individual.
   
Section 1.501(c)(3)-1(a)(1) of the Treasury Regulations states that to be exempt as an organization described in section 501(c)(3), an organization must be both organized and operated exclusively for one or more of the purposes specified in such section - charitable, religious, educational, scientific, literary, testing for public safety, or for the prevention of cruelty to children or animals. If an organization fails to meet either the organizational test or the operational test, it is not exempt.
   
Section 1.501(c)(3)-1(b)(1)(i) of the regulations provides that an organization is organized exclusively for one or more exempt purposes only if its articles of organization (as defined in subparagraph (2)) limit its purposes to one or more exempt purposes and do not expressly empower it to engage, otherwise than as an insubstantial part of its activities, in activities which in themselves are not in furtherance of one or more exempt purposes.
   
Section 1.501(c)(3)-1(b)(2) of the regulations provides that the term "articles of organization" or "articles" includes the trust instrument, the corporate charter, the articles of association, or any other written instrument by which an organization is created.
   
Section 1.501(c)((3)-1(c) of the regulations describes the operational test requirements for 501(c)(3) exemption. The operational test focuses on how the organization is actually operated, regardless of whether it is properly organized for tax-exempt purposes.
   
Section 1.501(c)(3)-1(c)(1) of the regulations provides that an organization will be regarded as "operated exclusively" for one or more exempt purposes only if it engages primarily in activities which accomplish one or more of such exempt purposes specified in section 501(c)(3). An organization will not be so regarded if more than an insubstantial part of its activities is not in furtherance of an exempt purpose. This is referred to as the "primary activities" test.
   
Section 1.501(c)(3)-1(c)(2) of the regulations provides that an organization is not operated exclusively for one or more exempt purposes if its net earnings inure in whole or in part to the benefit of private shareholders or individuals.
   
Section 511 of the Code imposes a tax at corporate rates under section 11 on the unrelated business taxable income of certain tax-exempt organizations.
   
Section 6001 of the Code provides, in part, that every person liable for any tax imposed by this title, or for the collection thereof, shall keep such records, render such statements, make such returns, and comply with such rules and regulations as the Secretary may from time to time prescribe. Whenever in the judgment of the Secretary it is necessary, he may require any person, by notice served upon such person or by regulations, to make such returns, render such statements, or keep such records, as the Secretary deems sufficient to show whether or not such person is liable for tax under this title.
   
Section 1.6001-1(c) of the regulations provides that in addition to such permanent books and records as are required by paragraph (a) of this section with respect to the tax imposed by section 511 on unrelated business income of certain exempt organizations, every organization exempt from tax under section 501(a) shall keep such permanent books of account or records, including inventories, as are sufficient to show specifically the items of gross income, receipts and disbursements. Such organizations shall also keep such books and records as are required to substantiate the information required by section 6033. See section 6033 and regulations sections 1.6033-1 through 1.6033-3.
   
Section1.6001-1(e) of the regulations provides that the books or records required by this section shall be kept at all times available for inspection by authorized internal revenue officers or employees and, shall be retained as long as the contents thereof may be material in the administration of any internal revenue law.
   
Section 6033 of the Code provides, in general, that every organization exempt under IRC 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 of 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.
   
Section 6033 of the Code provides an exception to the annual filing requirement in the case of an organization described in section 501(c) (other than a private foundation or a supporting organization described in section 509(a)(3)) the gross receipts of which in each taxable year are normally not more than $50,000. See section 1.6033-2(g)(1)(iii) of the regulations.
   
Section 1.6033-2(g)(5) of the regulations provide that an organization that is not required to file an annual return by virtue of the gross receipts exception must submit an annual electronic notice notification as described in section 6033(i) of the Code.
   
Section 1.6033-2(i)(2) of the regulations provides that every organization which is exempt from tax, whether or not it is required to file an annual information return, shall submit such additional information as may be required by the Internal Revenue Service for the purpose of inquiring into its exempt status and administering the provisions of subchapter F (section 501 and following), chapter 1 of subtitle A of the Code and section 6033.
   
Rev.Rul. 59-95, 1959-1 C.B. 627, concerns an exempt organization that was requested to produce a financial statement and statement of its operations for a certain year. However, its records were so incomplete that the organization was unable to furnish such statements. The Service held that the failure or inability to file the required information return or otherwise to comply with the provisions of section 6033 of the Code and the regulations which implement it, may result in the termination of the exempt status of an organization previously held exempt, on the grounds that the organization has not established that it is observing the conditions required for the continuation of exempt status.
   
Section 12.03 of Revenue Procedure 2022-5, 2022-1 I.R.B. 256 provides that the revocation of a determination letter recognizing exemption may be retroactive if there has been a change in the applicable law, the organization omitted or misstated material information, or operated in a manner materially different from that originally represented. Furthermore, subsection (2) of section 12.05 provides that where there is a material change in facts, inconsistent with exemption, revocation will ordinarily take effect as of the date of such material change.
   
Organization's Position:   
   
****** position is unknown at this time.
   
Government's Position:   
   
Analysis   
   
The facts indicate that  received recognition of exemption under section 501(c)(3) of the Code in ****** based on information presented in its Form 1023 application and accompanying attachments.
   
The TE/GE division of the IRS maintains an examination program for exempt organizations to determine whether they are complying with statutory requirements regarding their tax-exempt status, the proper filing of returns, and other tax reporting matters. ****** filed Form 990-N, an electronic notice, for the ****** calendar year.
   
Operational Test Not Met   
   
****** was selected for audit to ensure that the organization's activities and operations align with their approved exempt status and to verify whether ****** was eligible to file Form 990-N based on gross receipts.
   
Section 6001 of the Code and the regulations thereunder impose requirements on exempt organizations to keep books and records to substantiate information required under section 6033 of the Code. Although ****** filed an electronic notice in lieu of a return, the organization is nevertheless required to produce records and other information requested by the IRS to verify that it operates in furtherance of its exempt purpose. See regulations section 1.6033-2(i)(2).
   
As part of standard audit procedures, the IRS examiner requested basic financial records including books of account, minutes of Board meetings and records and information pertaining to ****** activities. Such records and information are needed to verify whether ****** continues to be operated exclusively for one or more of the exempt purposes specified in section 501(c)(3) of the Code. ****** failed to respond to repeated reasonable requests to allow the IRS to examine its books and records including its receipts, disbursements, and other items required to be kept and maintained pursuant to sections 6001 and 6033(a)(1) of the Code.
   
Accordingly, ****** has failed to meet the requirements of section 501(c)(3) of the Code and sections 1.501(c)(3)-1(a) and 1.501(c)(3)-1(c) of the regulations, in that the organization has not established that it is operated exclusively for exempt purposes and that no part of its net earnings inures to the benefit of private shareholders or individuals. See also Rev.Rul. 59-95.
   
****** is No Longer a Legal Entity Under State Law   
   
A basic premise of tax-exempt status under section 501(c)(3) of the Code is that it may apply only to an organization that is organized pursuant to "articles of organization" within the meaning of section 1.501(c)(3)-1(b)(2) of the regulations. Such articles of organization include a corporate charter, articles of incorporation, or similarly named instrument in the case of a corporation. Public records made available online show that  was dissolved as a corporate entity pursuant to a court order filed on ******, ******. See Exhibits D and E. Upon the involuntary dissolution of ****** by the State of ******, ****** was no longer exempt by operation of law since the organization was no longer a separate legal entity that can qualify for exemption under section 501(c)(3). See section 1.501(c)(3)-1(b) of the regulations regarding the organizational test requirements.
   
****** Should be Revoked Retroactively to ******, ******   
   
The examination of ****** covered the ****** calendar year. In the case of a proposed revocation of exempt status, the effective date is ordinarily the first day of the tax year under examination. However, records appended as Exhibits C and D show that ****** was formally dissolved pursuant to the court order filed ******, ******. The dissolution of ****** is a material fact inconsistent with exemption by operation of law. Therefore, ****** exempt status should be retroactively revoked effective ******, ******, in accordance with Rev.Proc. 2022-5.
   
Conclusion:   
   
For the reasons stated above, the IRS has determined that ****** is no longer exempt from Federal income tax under section 501(a) of the Code as an organization described in Code section 501(c)(3). Since the records show that ****** was no longer a legal entity upon its involuntary dissolution by court order, the IRS is proposing revocation of ****** exempt status effective ******, ******.
   
Please note that this Form 886-A, Explanation of Items, which is also known as the revenue agent report (RAR), constitutes an integral part of the attached 30-day letter #3618. Please refer to the attached letter #3618 for additional information including appeals rights and other options available to the organization and, the instructions for how to respond.