7.20.4  Special Determination Issues

7.20.4.1  (11-01-2004)
Overview

  1. This IRM section provides information on specific topics that employees in Exempt Organizations Determinations handle when processing determination letter requests.

  2. The information in this section describes the following:

    • Private schools

    • Transfer and control of gaming cases

    • Issuance of group exemption letters

    • Foreign applications

    • Board expansion

    • Terrorist issues

7.20.4.2  (11-01-2004)
Private Schools

  1. For purposes of IRC 501(c)(3), private schools include primary or secondary schools, colleges, and professional or trade schools (day care organizations may also be included if all requirements are met). By definition, a school is described in IRC 170(b)(1)(A)(ii).

  2. A school must primarily present formal instruction and normally maintain a regular faculty and curriculum, and normally have a regularly enrolled body of pupils or students in attendance at the place where the organization regularly carries on its educational activities.

  3. All organizations that are private schools must establish a racially nondiscriminatory policy, except purely religious schools (e.g., a seminary). The information required for establishing such policy is set forth in Rev. Proc. 75-50, 1975-2 C.B. 587.

7.20.4.2.1  (11-01-2004)
Processing Private School Cases

  1. An agent must secure the following from a private school:

    1. Either a statement in a charter, bylaws or other governing instruments, or a copy of a resolution signed and dated by the members of its governing board, which provides that the organization has a racially nondiscriminatory policy toward students. See Section 4.01, Rev. Proc. 75-50.

    2. Copies of any brochures, application forms, advertisements and catalogues dealing with its student admissions, programs and scholarships, as well as representative copies of all written advertising used as a means of informing prospective students of its programs. This literature must contain a statement of the organization’s racially nondiscriminatory policy. If present literature does not contain a notice of the organization's racially nondiscriminatory policy, the organization must submit a statement signed by one of the principal officers that future literature will contain the required statement. See Section 4.02, Rev. Proc. 75-50.

    3. Original notice of the organization’s nondiscriminatory policy that must be published in a newspaper of general circulation that serves all racial segments of the community the organization serves. Such notice must follow the example in section 4.03 of Rev. Proc. 75-50 regarding the caption, wording, and the size of the type to be used in the advertisement. The notice must appear in a section of the newspaper likely to be read by prospective students and their families. Therefore, a notice published in the legal notices section or classified advertisements is generally not acceptable. The organization must furnish the entire page (the "tear sheet" ) of the newspaper in which the notice appears. A reproduced copy of the notice is not acceptable.

    4. A numerical schedule showing the racial composition for the current academic year, and projected as far as may be feasible for the next academic year, of: (i) the student body, (ii) faculty, and (iii) administrative staff. Actual numbers are required rather than percentages for each racial/ethnic class. If the organization is not yet operational, the organization must estimate based on the best information available (such as the racial composition of the community served). See Section 5.01-1, Rev. Proc. 75-50.

    5. The number and amount of loans and scholarships awarded to students enrolled by racial/ethnic categories. See Section 5.01-2, Rev. Proc. 75-50.

    6. A list of the incorporators, founders, board members, and donors of land or buildings. See Section 5.01-3, Rev. Proc. 75-50.

    7. A statement as to whether any of its incorporators, founders, board members, and donors of land or buildings have an objective to maintain segregated public or private school education. See Section 5.01-4, Rev. Proc. 75-50.

    8. A statement that the organization will maintain records according to the provisions of Rev. Proc. 75-50, Section 7, in order to support the racially nondiscriminatory policy of the private school.

      Reminder:

      Carefully review responses to ensure that all requirements as set forth by Rev. Proc. 75-50 have been met.

  2. Case files for recognition of exemption for private schools must include a completed Private School Determination Case Checksheet (see Exhibit 7.20.4-1) and a Private School Worksheet (see Exhibit 7.20.4-2). Should the organization fail a sufficient number of categories on the Private School Determination Case Checksheet, EO Technical should be contacted.

  3. Agents closing private school cases are to issue Letter 947 including paragraph 3201 for the inclusion of Rev. Proc. 75-50 requirements compliance in order for the organization to maintain exemption.

  4. Agents closing cases involving private schools operated by churches are to add an addendum to Letter 947 stating that the organization is responsible for the annual certification attesting to adherence to the provisions of Rev. Proc. 75-50.

  5. During the closing process, use Form 3198-A to indicate that private school cases require mandatory review. See IRM 7.20.5 (when published).

  6. For more information on this topic, see Rev. Proc. 75-50 and Rev. Rul. 71-447.

7.20.4.3  (11-01-2004)
Transfer and Control of Gaming Cases

  1. Many organizations use gaming as a means to raise funds for their organization. Charitable gaming includes bingo, raffles, pull-tabs, keno, etc., conducted by or under the auspices of an IRC 501(c)(3) organization.

  2. Organizations that conduct bingo as their primary activity are designated as Reserved Inventory. See 7.20.1.2.3. Organizations that conduct bingo as their primary activity are designated to be kept in Cincinnati, Ohio, for processing. If an Area Office discovers that an organization’s primary activity is gaming, the case may be returned to Cincinnati.

  3. When working an application and it is discovered that an organization will conduct charitable gaming, the agent should:

    1. Inquire as to how much time the organization will expend (percentage-wise) conducting the activity.

    2. Verify that the charitable gaming is legal under State law. If charitable gaming is not legal under State law, contact EO Technical.

    3. Determine whether volunteers conduct the activity.

    4. Determine if the gaming activity will be the primary activity. If so, see (2).

    5. For case development purposes the agent may use a paragraph in an information letter similar to the one shown in Exhibit 7.20.4–3.

    6. Consider whether the gaming causes the organization to incur a liability for unrelated business income tax. If the organization is liable for unrelated business income tax, include Form 990-T filing requirements on Form 8670 when closing the case.

    7. Consider preparing an exam referral on Form 5666. See IRM 7.20.1.4.

    8. Attach a copy of IRS Publication 3079, Gaming Publication for Tax Exempt Organizations, to the closing letter as an educational tool for the taxpayer.

7.20.4.4  (07-20-2010)
Issuance of Group Exemption Letters

  1. Applications for group exemption letters are processed under the provisions of Rev. Proc. 90-27, 1990-1 C.B. 514, and Rev. Proc. 80-27, 1980-1 C.B. 677, modified by Rev. Proc. 96-40, 1996-2 C.B. 301.

  2. Group rulings are intended as an administrative convenience to relieve organizations with historically high levels of compliance from the burden of filing an application for each subordinate. The Service may decline (Declination letter) to issue a group exemption letter if warranted by the facts and circumstances. The user fee is refunded in these cases.

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  4. The central organization must obtain recognition of its own exempt status before or concurrently with the group application.

    1. The central organization does not have to be exempt under the same paragraph of IRC 501(c) as its subordinates. The subordinates must be exempt under the same paragraph of IRC 501(c).

    2. A regular exemption letter (Letter 947, Letter 948 or Letter 1045) will be issued and will include an addendum referring to the group exemption letter.

  5. A subordinate included in a group exemption letter should not apply separately for recognition of exempt status unless it no longer wants to be included in the group exemption. Only subordinate organizations are covered by group exemption Letter 2419.

  6. A subordinate that is organized and operated in a foreign country may not be included in a group exemption.

  7. Organizations closely affiliated with governmental entities (instrumentalities) may obtain a group exemption if the requirements are met.

  8. Continued effectiveness of the group exemption letter is dependent on the factors listed in section 7 of Rev. Proc. 80-27.

7.20.4.4.1  (11-01-2004)
Definitions

  1. A group exemption letter is issued in response to a group ruling request to a central organization recognizing, on a group basis, the exemption under IRC 501(c) of its subordinate organizations on whose behalf the central organization has applied for recognition of exemption. Rev. Proc. 80-27.

  2. A central organization has one or more subordinates under its general supervision or control. Therefore, a state, regional, or national organization is the central organization for the units it controls.

  3. A subordinate is a chapter, local, post, or unit of a central organization.

  4. An intermediate organization is a central organization, which may also be classified as a subordinate organization.

7.20.4.4.2  (11-01-2004)
Establishing Group Ruling Requests on EDS and Initial Processing

  1. Group ruling requests are established on EDS as "Amendment " (A) cases with Form 1026.

  2. A central organization that simultaneously requests an individual exemption and a group exemption requires the establishment of two cases on EDS:

    1. an I case for the parent's individual exemption, and

    2. an A case with Form 1026 for the group exemption.

    Note:

    It is the agent's responsibility to ensure group ruling requests are established correctly on EDS.

  3. Group ruling cases are identified by screeners as "Reserved Inventory" for processing by a group ruling agent. A group ruling agent will request group ruling cases according to the agent's individual workload and group ruling inventory level. However, there may be situations when a group ruling may be assigned to an agent other than a group ruling agent.

    Example:

    An agent is assigned an initial application and discovers the organization wishes to request a group ruling. The agent should discuss the group ruling request with his or her manager to determine if the case should be reassigned or coordinated with a group ruling agent.

  4. The appropriate user fee must be submitted by the organization. Currently the user fee for a group exemption is $500. The user fee schedule is provided in Rev. Proc. 2004-8, 2004-1 I.R.B. 240 (published annually).

  5. If an organization is applying for an individual exemption and group exemption simultaneously, then the agent needs to verify that a user fee was paid for both the individual exemption and group exemption.

  6. Group ruling cases are subject to mandatory review. See IRM 7.20.5.4 for more information.

7.20.4.4.3  (11-01-2004)
Closing Procedures for Group Rulings

  1. When preparing a case for closing, these instructions apply:

    1. Complete the Group Ruling Checksheet. See Exhibit 7.20.4-4.

    2. Contact Adjustments Unit at 513-263-3447 or 513-263-3454 to obtain a Group Exemption Number (GEN).

    3. Forward the group ruling request to the Ogden Campus (previously known as the Ogden Service Center). Attach the Pilot Voucher (Form 2363-A) and attachment to the Pilot Voucher to the Form 1725.

    4. Complete Pilot Voucher according to current group exemption specialist team example. Information on the bottom half of this form pertains to the subordinate(s). If the information (effective date of exemption, foundation status, etc.) for the subordinate(s) is different, attach a schedule indicating the correct information for each of the subordinates.

    5. Prepare Letter 2419.

    6. Prepare Form 8670 and complete all applicable fields including the GEN number assigned to the group exemption. EDS currently will not accept an affiliation code of 6 or 8 for the central organization. An affiliation code of 3 must be entered.

    7. Prepare Form 3198-A, check mandatory review, and enter group ruling to forward case to EO Determinations Quality Assurance.

    8. If the case is returned after managerial or technical review and it has been determined that a group ruling should not be issued, the agent must contact the adjustments clerk to remove record of GEN for the organization.

      Note:

      If the central organization plans to file a group return, inform the parent of the need for a separate EIN for the group return.

  2. If the subordinate or intermediate organizations have outstanding exemption letters and are to be included in a group exemption, the group exemption letter will state that the prior exemption letters are superseded. The central organization will be instructed to notify each subordinate that its individual exemption letter is superseded.

  3. Where a request for a group exemption is made by an intermediate organization and the group exemption files indicate that there is an existing group exemption letter to a central organization covering the intermediate and its subordinates, the intermediate will be advised that it is not necessary to obtain another group ruling.

7.20.4.4.4  (11-01-2004)
Group Ruling Additions, Deletions and Changes

  1. Rev. Proc. 80-27 requires that the central organization submit annually to the Ogden Campus (previously known as Ogden Service Center) information about additions, deletions and changes in purposes, character, or method of operation of subordinate organizations that are covered by the group exemption. The information should be submitted 90 days before the close of its annual accounting period.

    1. If the annual list is submitted to an Area Office or to EO Technical, it should be forwarded to the Ogden Campus.

    2. Amendments to the central organization should be submitted to TE/GE Customer Account Services for processing as described in IRM 7.20.2.4.2.

  2. See IRM 3.13, Campus Document Services, for campus procedures for processing Supplemental Group Ruling Information (SGRI).

7.20.4.4.5  (11-01-2004)
Discontinuance of Group Exemptions — Terminations

  1. A group exemption should be terminated if the central organization notifies EO Determinations that it no longer wishes to maintain its status as a parent organization, but that it wishes to maintain its individual ruling.

  2. A letter similar to Letter 2242 (DO/CG) will be issued in termination cases. The letter should be modified to include information of the effect the termination has on the central organization as well as the subordinates.

  3. The termination letter will be mailed to the central organization only. Add to the letter a statement that it should advise the subordinates of this action including applying for individual exemption if desired.

7.20.4.4.6  (11-01-2004)
Denial of Application

  1. The agent should discuss the proposed denial with the group manager.

  2. A denial of a group exemption application may be based upon one or more of the following:

    1. Failure of the central organization to qualify for recognition of exemption

    2. Other failure to satisfy the Rev. Proc. 80-27 requirements for group exemption

    3. Nonqualification of the subordinates under IRC 501(c)

  3. If the denial is based on (1) a) or b), the denial letter will include a statement that if the individual subordinates wish to establish their own exempt status, they must file separate exemption applications. The denial letter should not discuss whether any of the subordinates might qualify under IRC 501(c).

  4. If the denial is based on paragraph (1) c), the denial letter will also discuss why the subordinates do not qualify under IRC 501(c).

  5. If one or more subordinates do not qualify for exemption and the central organization:

    1. Submits a new list of subordinates that qualify for the letter sought, issue a favorable group exemption letter. Include a statement about receipt (including the date) of the revised list of subordinates that replaced the previous list of subordinates.

    2. Does not submit a new list of affiliates that qualify for the letter sought, issue a letter that is partly favorable only to those affiliates named in an addendum to the letter that qualify for the letter sought, and partly a denial of those affiliates that do not qualify for the letter sought. Include protest and conference rights (and IRC 7428 language in IRC 501(c)(3) cases) in the letter.

  6. The usual protest and conference privileges should be afforded to the central organization before the denial becomes final.

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7.20.4.4.8  (11-01-2004)
Potential Revocation

  1. If a central organization or a subordinate submits information that indicates that it no longer qualifies as tax- exempt based upon a change in its organization or operations, the agent needs to prepare Form 5666 to refer the information to EO Examinations for development of the revocation issue. Revocation of a central organization's tax-exempt status will result in revocation of the group exemption.

  2. If one or more subordinates included in a group exemption letter are revoked, the group exemption letter will no longer apply to the affected organization(s) but will otherwise remain in effect, so long as there remains at least one qualified subordinate.

7.20.4.5  (11-01-2004)
Foreign Applications

  1. For purposes of EO Determination case processing:

    1. Foreign organizations are those which are not domestic; and

    2. Domestic means an organization that was created or organized in the United States or under the laws of the United States or of any State.

  2. As a general rule, U.S. possessions are not treated as domestic organizations since they are not contained in the general definition of United States that is limited to States and the District of Columbia. Foreign organizations, if meeting the requirements for the section under which they are applying, may qualify for exemption.

  3. Applications from foreign organizations and domestic conduits for foreign organizations are identified during screening as Reserved Inventory. See 7.20.1.2.3

  4. For additional procedures, see also, IRM 7.27.27, Application of Taxes and Denial of Exemption to Certain Foreign Organizations.

7.20.4.5.1  (11-01-2004)
Processing Foreign Applications

  1. Obtain an explanation about where the organization was created or organized and why it is seeking United States tax exemption.

  2. All documents submitted in support of an application must be in English or accompanied by an English translation.

  3. Foreign organizations that apply for IRC 501(c)(3) status must have IRC 501(c)(3) language in their organizing document. If they do not want to amend to include the language, suggest IRC 501(c)(4) status since contributions may not be deductible anyway. Contributions may be deductible to a foreign organization by treaty or if the organization is created or organized in a possession of the United States.

    Note:

    Do not suggest IRC 501(c)(4) if the organization is treated as a private foundation, such as a nonexempt charitable trust defined in IRC 4947(a)(1).

  4. Foreign schools must comply with Rev. Proc. 75-50.

    Exception:

    If a foreign school can demonstrate that the information is impossible to collect because collecting it would be illegal under foreign law or impractical under the circumstances, and can make a prima facie showing that the allegation is true, such as a copy of the law or regulation, the Service may waive parts of Rev. Proc. 75-50.

  5. Foreign private foundations are excepted from IRC 508(a) and 508(e) requirements if they receive substantially all of their income from sources outside the U.S. from the date of creation. Unless foreign non-private foundation applicants fall within the exceptions set forth in Reg. 1.508-1(a)(3), or if a private foundation applicant receives in excess of 15 percent of its support from U.S. sources from the date of creation, then the 15-month filing requirement set forth in IRC 508(a) must be met. Foreign private foundations receiving more than 15 percent of their support from U.S. sources from the date of creation are subject to the governing instrument provisions of IRC 508(e).

  6. Contributions to a foreign organization, other than an organization created or organized in a U.S. possession, are not deductible by the donors unless it is located in a country that has a tax treaty with the U.S. that provides for deductibility of contributions (e.g., Canada). The application must state which treaty governs contributions to it. If the application contains no such statement, the determination letter will deny deductibility of contributions without providing protest, conference, or declaratory judgment rights.

    Note:

    The complete text of all the tax treaties may be found on the following IRS website: http://www.irs.gov/businesses/corporations/article/0,,id=96739,00.html.

  7. The filing requirements for Form 990 and Form 990–T for foreign tax-exempt organizations are similar to requirements applicable to domestic organizations. A foreign organization described in IRC 509(a) (other than a private foundation) that normally does not have more than $25,000 in annual gross receipts from sources within the United States and has no significant activity in the United States is not required to File Form 990. Significant activity includes lobbying, political activity, and the operation of a trade or business, but does not include investment activity. See Rev. Proc. 94-17, 1994-1 C.B. 457.

    Note:

    Since foreign organizations are not described in IRC 170(c)(2), declaratory judgment provisions under IRC 7428 do not apply with respect to the contributions.

    Note:

    If the claim to be covered by a treaty is questionable, this issue should be pursued by information letter and/or a discussion with the organization prior to issuance of a determination letter.

  8. Other filing requirements for organizations created or organized in possessions of the United States and which have employees are as follows:

    Form Country Code
    941 Puerto Rico 07
    941 Virgin Islands, Guam, American Samoa 06
    940 Puerto Rico 07

    Note:

    Input 941 filing requirements for true foreign organizations only if there is proof of employees in the domestic U.S.

  9. Approval of U.S. possessions. Organizations created or organized in U.S. possessions (Puerto Rico, Virgin Islands, Guam, Marshall Islands, America Samoa, Northern Mariana Islands, Federated States of Micronesia) qualify for deductibility of contributions. Issue EDS Letter 1045, 947, etc.

  10. Approval of "true" foreign organizations . "True" foreign organizations do not receive deductibility of contributions, unless it is pursuant to a treaty. Issue composed closing letter.

  11. To close a case involving a U.S. possession based on " Failure to Establish" (FTE), the agent will complete the following actions:

    1. Close case status 11.

    2. Issue EDS Letter 1314/1315.

    3. Input Form 1120/1041 filing requirements.

    4. EDS Form 8670 will not accept the "other filing requirement " -- consider using 01/1 in this situation.

  12. To FTE a "true foreign organization," the agent will complete the following actions:

    1. Close case status 12.

    2. Issue composed FTE letter.

    3. Generally, the organization should not be given Form 1120/1041 filing requirements; however, consider this requirement if the organization receives a significant amount of income from sources within the U.S.

  13. The agent must place mail for foreign organizations in the designated location for the group. There is no additional postage required for the following territories: American Samoa, Federated States of Micronesia, Guam, Marshall Islands, Northern Mariana Islands, Puerto Rico, and the Virgin Islands.

  14. Telephone calls and facsimiles to foreign organizations require use of international telephone lines. Accurate logs must be maintained to substantiate the use of international telephone and fax lines.

7.20.4.5.2  (11-01-2004)
Canadian Treaty Organizations (Notice 99-47)

  1. Pursuant to the U.S.-Canadian Tax Treaty and Notice 99-47, which governs the treatment of Canadian charities seeking exempt status in the U.S., a Canadian charity registered by the Canada Customs and Revenue Agency (CCRA) is automatically recognized as exempt. However, a Canadian charity may request a ruling on foundation status and be listed in Publication 78, Cumulative List of Organizations.

  2. A Canadian charity requesting a ruling on its foundation status requires no user fee and should be established on EDS as an A case. The case may be closed as usual, except the agent will use a 4 as the deductibility code.

  3. A Notice 99-47 charity requesting classification of its foundation status will provide a copy of the charity's registration letter (Notification of Registration) from the CCRA, along with the following items from Form 1023:

    1. A completed and signed page 1 (Part I in its entirety),

    2. A completed page 6 (Part III, items 7-9),

    3. A completed page 7 (Part III, items 10–14),

    4. Completed pages 8 and 9 (Part IV in its entirety),

    5. Any required supporting schedule, and

    6. Form 8833, Treaty-Based Return Position Disclosure Under Section 6114 or 7701(b), or a separate statement indicating that the charity is claiming exemption pursuant to Article XXI of the Treaty.

  4. Agents will:

    1. Check the EDS listing for possible changes in the charity’s exempt status and, if the charity is not on the list and refuses to provide the Notice of Registration, contact the appropriate EO Technical contact.

    2. Process the foundation classification issue in the normal manner, except that all rulings are definitive.

    3. Issue a composed letter (either favorable or adverse) on the foundation issue.

    4. Close the case on EDS.

  5. The filing requirements are the same as for other foreign organizations. See IRM 7.20.4.5.1.

  6. If the charity does not submit financial data to establish its foundation classification, it is treated as a private foundation.

  7. A religious, scientific, literary, educational, or charitable organization formed in Canada that has received a Form T2051, Notification of Registration, from Revenue Canada and whose registration has not been revoked, may apply for recognition as a social welfare organization under IRC 501(c)(4) without completing all parts of Form 1024. Such an organization must complete only Part I and the signature portion of Form 1024. For more information, refer to Instructions for Form 1024, page 2, "Special Rule for Certain Canadian Organizations."

  8. Termination of a foreign private foundation under IRC 507 requires consulting with EO Technical for guidance to determine if IRC 507 is applicable.

  9. Consulting with EO Technical is also required for non-routine issues that arise during the course of a determination. The following types of cases must be transferred to EO Technical:

    1. An interpretation of a treaty or an international agreement that covers the determination

    2. Any determination involving unprecedented or novel issues

  10. If the case is closed favorably:

    1. The effective date of the exempt status and foundation classification is the later of the effective date of registration (shown in the Notice of Registration issued by the CCRA) or October 13, 1995 (the effective date of the Competent Authority Agreement),

    2. The Deductibility Code is 4 (Contributions to the Organization are Deductible under Treaty Provisions),

    3. The Determination Code is 01, and

    4. The Subsection Code is 03.

7.20.4.5.3  (11-01-2004)
Processing Procedures for Applicants from the United States Virgin Islands (USVI)

  1. A Memorandum of Understanding (MOU) was entered between the Virgin Islands Bureau of Internal Revenue (BIR) and the Internal Revenue Service (IRS). The purpose of the MOU is to implement processing procedures regarding applications for exemption and the filing of returns. An MOU was necessary because there had been confusion about whether an exempt organization chartered in USVI was required to file a Form 990 with both the BIR and IRS. Prior to the MOU, the BIR routinely sent exemption applications for the IRS to consider, as a favor to the BIR, whether the particular organization wanted U.S. exemption or not. The IRS considered the application and made a determination as to its tax exemption. Unfortunately, the application and determination established a filing requirement with the IRS.

  2. There are three different situations in which the procedures below will apply. It is important to make these distinctions and follow the appropriate procedures.

    1. The applicant files for exemption directly with the IRS and has no BIR involvement. The applicant files the appropriate Form 1023/1024 along with Form 8718 and pays the appropriate fee. The agent only corresponds with the applicant to determine exemption. U.S. exemption, if requirements are met, is granted. The exemption letter is issued to both the applicant and the BIR. The applicant will have Form 990 filing requirements, if warranted. IDRS will be updated to reflect the exemption, and the applicant will be entered into Publication 78. Form 3198-A will be attached to the approved application which states "Send copy of the letter to the BIR."

    2. The applicant has the BIR file for exemption with the IRS. The applicant files the appropriate Form 1023/1024 along with Form 8718 and pays the appropriate fee. The applicant completes Form 8821 authorizing the BIR to receive tax return information related to the exemption application. EDS should have been updated to reflect this authorization. The agent corresponds with both the applicant and the BIR to determine exemption. U.S. exemption, if requirements are met, is granted. The exemption letter is issued to both the applicant and the BIR. The applicant will have Form 990 filing requirements, if warranted. IDRS will be updated to reflect the exemption, and the applicant will be entered into Publication 78.

    3. The BIR requests an information letter. The appropriate Form 1023/1024 is submitted and marked as an information letter request. No Form 8718 is filed, and no fee is required. The agent corresponds with the BIR only to determine exemption. U.S. exemption is not issued. An information letter is issued to the BIR. There will be no Form 990 filing requirements. IDRS will not be updated to reflect exemption. Publication 78 will not be updated. EDS case will be closed status 12. The agent will attach Form 3198-A to the case and indicate "Microfiche for informational purposes only, not open for public inspection." Also, prepare a buckslip which will be included in the case file on the left side, top, which states " This application was processed for informational purposes only pursuant to the Memorandum of Understanding between the Virgin Islands Bureau of Internal Revenue and IRS. No U.S. exemption has been granted. This file is not open for public inspection. It has been microfiched for informational purposes only."

7.20.4.6  (11-01-2004)
Board Expansion

  1. Generally, expansion of an organization's board is a possible method to lessen the degree of concern where the strong possibility for inurement or private benefit is suggested by an organization’s application for exemption. For additional information on this topic, see Rev. Rul. 69-383.

    Example:

    1. Where board members include persons who appear to be related and such persons will be compensated, the addition of unrelated outside parties to the board will dilute such majority. For example, A. Willow, B. Willow, and G. Maple serve on a 3-person board. A. Willow will be paid. The Willows are married to each other. The only unpaid, unrelated board member is G. Maple. Maple's vote on issues would not constitute a majority.

    Example:

    2. The addition of unrelated leaders from the community at large who share the same interests of the organization tends to lessen the possibility that benefits to insiders, including unreasonable compensation, will occur.

    Example:

    3. In addition to diluting control over a governing board, another method that can be used by an organization in order to preclude the likelihood of inurement or private benefit is to adopt a conflict of interest policy whereby the officers, directors, trustees and highly compensated employees are prohibited from having decision making authority over any activities where they have a conflict with the charitable pursuits of the organization. For example, a director would not be eligible to vote on a contract between the applicant organization and a company that the director owns.

  2. This applies to organizations other than private foundations seeking exemption under IRC 501(c)(3).

  3. We cannot require that an organization expand its board or adopt a conflict of interest policy as a condition of exemption. If an organization refuses to expand its board and inurement cannot be proven to have occurred but is likely, then a detailed explanation justifying exemption should be incorporated into Form 6038 (See Exhibit 7.20.2-1) when closing a case. Where there is strong potential for inurement, a referral should be made for a future year examination using Form 5666.

7.20.4.7  (11-01-2004)
Possible Terrorist Connections — Overview

  1. An organization that conducts activities that are illegal or contrary to clearly defined public policy does not qualify for exemption from federal income tax under IRC 501(a). To minimize the chance that an organization that commits acts of terrorism or supports such acts will receive recognition of exemption, a procedure to identify applications where the organization may be involved in or support terrorism is implemented. A Comprehensive List of Terrorists and Groups is available as an EXCEL spreadsheet. EO Determinations is responsible for updating this list periodically to add or remove names. The Comprehensive List of Terrorists and Groups includes individuals, entities and organizations listed in Executive Order 13224 and as a Foreign Terrorist Organization, obtained from the Department of Treasury Office of Foreign Assets Control (OFAC). The OFAC list can be obtained at http://www.treas.gov/offices/enforcement/ofac/sdn/index.html. Only the names of individuals, entities and organizations listed as an SDT (specially designated terrorist) or as an SDGT (specially designated global terrorist) are added to the Comprehensive List of Terrorists and Groups.

7.20.4.7.1  (11-01-2004)
Processing Procedures

  1. The following cases are to be transferred to EO Technical for processing:

    1. Cases in which the applicant organization represents in its application that it will engage in terrorist activity, or in any activity that consists of providing support to terrorists or terrorist organizations, including sending funds, materials, or other resources for such activity.

    2. Cases in which the Service has credible information that the applicant organization has engaged in or plans to engage in terrorist activity, or in any activity that consists of providing support to terrorists or terrorist organizations, including sending funds, materials, or other resources for such activity.

    3. Cases where the applicant organization, listed principal officers, directors, trustees, or named potential grantees are included in the Comprehensive List of Terrorists and Groups.

    4. Cases where the applicant organization, listed principal officers, directors, trustees, or named potential grantees are included in the list of foreign terrorist organizations (FTOs) designated by the U.S. Department of State under the Antiterrorism and Effective Death Penalty Act of 1996. The list is obtained from http://www.state.gov/s/ct/. See Exhibit 7.20.4-5.

      Note:

      All determination agents, including agents involved in the screening process as well as agents working regular inventory cases, must search the EXCEL spreadsheet containing the Comprehensive List of Terrorists and Groups for cases described in items c) and d) above. Any questions regarding a name on the list can be directed to the EO Technical contact.

  2. Cases where the applicant organization is located in or plans to conduct activities in, or send funds or materials to individuals or entities located in or conducting activities in, or has officers or directors that are located in a country designated as a state sponsor of terrorism under the Export Administration Act and regulated by OFAC must be coordinated with EO Technical prior to any final processing. These countries currently include:

    1. Cuba

    2. Iran

    3. Iraq

    4. Libya

    5. North Korea

    6. Sudan

    7. Syria

  3. Cases in which the facts and circumstances indicate a strong likelihood of a terrorist connection by the applicant will be coordinated with the EO Technical contact during case processing.

  4. If paragraphs (1) through (3) are applicable, complete the Potential Terrorist Connection Checklist. The checklist is shown in Exhibit 7.20.4-5.

7.20.4.8  (11-01-2004)
Exempt Organizations Technical E-Mail Box and Telephone Inquiries

  1. Determination specialists may seek assistance on technical matters from EO Technical though an E-Mail Box or by contacting a designated subject matter expert by telephone.

    • Determination specialists should advise their immediate manager of their intention to request informal assistance from EO Technical, whether by e-mail or telephone.

    • E-Mail inquiries should be sent to *TE/GE-EO (the asterisk is required), and secure messaging must be used if the inquiry includes taxpayer information.

    • The agent's immediate manager must be copied on any e-mail inquiry. (If the manager is not copied, the inquiry will be returned without a response.)
      Similar procedures should apply to advising an immediate manager about informal assistance requested from EO Determinations Quality Assurance.

  2. EO Technical will assign incoming e-mail requests to senior tax law specialists based on their areas of expertise. EO Technical will provide a response within 5 work days of assignment to the tax law specialist. If more time is required to respond, EO Technical will send an interim reply providing an estimated time frame for the response.

7.20.4.9  (11-01-2004)
Processing Guides

  1. Processing guides are intended to provide aid in handling special determination issues. Generally, a guide will provide standards that should be reviewed to help determine whether an organization is qualified for the determination letter requested.

    1. Organizations that apply for exemption representing that they intend to be involved in providing charitable housing through a low income housing partnership that offers tax credits should be reviewed based on the standards set forth in the Low Income Housing Tax Credit Limited Partnership memorandum (see Exhibit 7.20.4-6).

    2. Form 1024 applications filed by voluntary employee beneficiary associations (VEBA) seeking recognition of exemption under IRC 501(c)(9) should be reviewed based on the standards set forth in the VEBA Reference Guide Sheet and the accompanying VEBA Reference Guide (see Exhibit 7.20.4-7).

    3. Requests for approval of set-asides under IRC 4942(g)(2) should be reviewed based on the standards set forth in the Reference Guide Sheet for Processing Set-Aside Requests, the accompanying " Law at a Glance," and sample private rulings (see Exhibit 7.20.4-8).

    4. Applications for recognition of exemption under IRC 501(c)(3) filed by health care providers, such as hospitals, clinics, and health maintenance organizations, should be reviewed based on the standards set forth in the Guide Sheet and Reference Guide for Hospitals, Clinics and Similar Health Care Providers (see Exhibit 7.20.4-9). This guideline was previously issued in the FY 2004 Exempt Organizations Continuing Professional Education (CPE) text.

    5. Applications for recognition of exemption under IRC 501(c)(3) filed by organizations, which are closely affiliated with state institutions or Indian tribal governments, should be reviewed based on the standards set forth in the Guide Sheet and Reference Guide for IRC 501(c)3) Organizations Closely Affiliated with State or Indian Tribal Governments (see Exhibit 7.20.4-10). This guideline was previously issued in the FY 2004 Exempt Organizations Continuing Professional Education (CPE) text.

    6. Requests for advance approval of individual grant procedures filed by private foundations under IRC 4945(d)(3) and IRC 4945(g) should be reviewed based on the criteria set forth in the Guide Sheet and Instructions for Advance Approval of Individual Grant Procedures (see Exhibit 7.20.4-11).

    7. Applications for recognition of exemption under IRC 501(c)(3) filed by limited liability companies, and by organizations associated with limited liability companies, should be reviewed based on the Limited Liability Company Reference Guide Sheet and accompanying Instructions (see Exhibit 7.20.4-12).

    8. Applications for recognition of exemption under IRC 501(c)(3) filed by charter schools should be reviewed based on the criteria set forth in the Charter School Guide Sheet and the accompanying Reference Guide (see Exhibit 7.20.4-13).

Exhibit 7.20.4-1 
Private School Determination Case Checksheet


Private School Determination Case Checksheet
Name of Organization:



This checksheet is to be used to classify applications for recognition of exemption from federal income tax under IRC 501(c)(3) filed by private elementary or secondary schools and organizations that support such schools.
If at least one question in Category A and one question in Category B are answered affirmatively, call the EO Technical private school contact.
If the application for exemption does not provide enough information to answer a particular question, the specialist should request the information from the organization, or other appropriate source, as discussed with the EO Technical contact. Specialists should not hesitate to call the designated EO Technical contact for informal assistance in developing and analyzing private school cases.


Category A (YES/NO)
1. Is the applicant organization a private elementary or secondary school?
2. Does the applicant organization support the activities of private elementary or secondary schools?

Category B (YES/NO)

1. Is the applicant organization located in Mississippi or Louisiana?
2. Has the applicant organization ever been denied exemption?
3. Has the applicant organization ever had previous IRC 501(c)(3) status revoked?
4. Has the applicant organization ever been described or adjudicated as racially discriminatory by a court or governmental administrative body?
5. Was the applicant organization formed at the time of public school desegregation in its area?
6. Are there any indications of actual racial discrimination present (third party complaints, etc.)?
7. Did the applicant operate as a taxable organization before filing its application for exemption and, if so, is there any evidence of prior discriminatory operations?
8. Is the applicant organization a successor organization to an organization described in questions 2 through 7?
9. Is the applicant organization supporting one or more organizations described in questions 1 through 8?

The completed checksheet should be inserted in the administrative file on the left side of the folder and will become part of the permanent record in the case for purposes of post review and records retention.

Exhibit 7.20.4-2 
Private School Worksheet

School Worksheet

Rev. Proc. 75–50

a. Section 4.01 - Racially nondiscriminatory policy statement must be in one of the following:

Articles of Incorporation or Amendments thereto

Bylaws or other governing instrument

Resolution, signed and dated by the members of the governing body


Give location in file___________________________________________

b. Section 4.02 - Do copies of any brochures, application forms, advertisements and catalogues dealing with student admissions, programs and scholarships, as well as representative copies of all written advertising used as a means of informing prospective students of programs, contain a statement of racially nondiscriminatory policy?

Yes ____ No_____

If not, is there a statement signed by one of the principal officers that future literature will contain the required statement?

Yes ____ No_____

Give location in file___________________________________________

c. Section 4.031(a) - Do we have the entire page of the newspaper in which the notice of nondiscriminatory policy was published?

Give location in file___________________________________________

Yes ____ No_____

d. Section 5.011 - Is there a numerical schedule showing the racial composition for the current academic year, and projected as far as may be feasible for the next academic year, of (a) the student body, (b) faculty, and (c) administrative staff?

Yes ____ No_____

Give location in file___________________________________________

e. Section 5.012 - Is there a schedule providing the number and amount of loans and scholarships awarded to students enrolled by racial/ethnic categories?

Yes ____ No_____ N/A (If no loans or scholarships awarded.)

Give location in file___________________________________________

f. Section 5.013 - Is there a list of incorporators, founders, board members, and donors of land or buildings?

Give location in file___________________________________________

g. Section 5.014 - Is there a statement indicating whether any incorporators, founders, board members, and donors of land or buildings have an objective to maintain segregated public or private school education?

Give location in file___________________________________________

h. Section 7 - Is there a statement signed by one of the officers that records will be maintained in accordance with Rev. Proc. 75–50?

Give location in file___________________________________________

Exhibit 7.20.4-3 
Gaming Case Development Paragraph

You indicated in your application that your fundraising activities include bingo.

  • What percentage of your total time will you devote to bingo?

  • How often will bingo games be conducted?

  • What percentage of funds will be for the operation of bingo games?

  • Are your bingo games administered solely with volunteer labor? If not, please explain compensation.

  • Did you ask for a copy of the state and/or local laws that allow bingo or gaming of any kind?

  • Where will the bingo games take place? Who owns the bingo hall? Is the bingo hall owner on your board of directors? Are bingo games held at the hall every night by a different nonprofit organization? Is the owner of the hall on the board of directors of these other nonprofit organizations?

  • An organization engaging in business activities to further exempt purposes may qualify for exemption under section 501(c)(3) of the Code if a sufficient amount of money is generated for charity. Please supply the following information regarding your bingo activity for the current year so we can determine if you meet this requirement.
    Gross income (amount taken in at door)
    Prizes paid out
    Rent
    Other expenses (itemized)
    Net income available for charity

  • Please submit proposed budgets detailing the bingo operation for the next two years in the same manner requested above.

Exhibit 7.20.4-4 
Group Ruling Checklist

GROUP RULING CHECKLIST

Organization Name:

Initials:

Date:

The parent organization should submit a statement in writing addressing the issues referred to in the section titled "Statement of Intent. " In the case that one or more of these issues is not addressed, the Group Ruling Resolution (location of file) can be modified and used. In addition to this statement, complete pages 2 and 3 of this checklist as necessary.

Statement of Intent Yes No N/A Comments
The parent has established that its subordinates are:        

Affiliated with it.
       

Subject to its general supervision or control.
       

All exempt under the same paragraph of IRC 501(c).
       

All on the same accounting period as the parent if they are to be included in the same return.
       
A detailed description of the purposes and activities of the subordinates including the source of receipts and nature of expenditures.        
A sample copy of the subordinates' uniform governing instrument which has been adopted by the subordinates has been provided. Alternatively, a representative instrument may be submitted.        
The statement includes an affirmation that the subordinates' purposes and activities are as set forth in the second and third requirements above.        
A statement has been secured that each subordinate has furnished written authorization to be included in the group exemption letter.        
A list of the subordinates who previously have been recognized as exempt from Federal income tax has been secured.        
If the subordinates are described in IRC 501(c)(3), an affirmation that, to the officer's knowledge and belief, no listed subordinate is a private foundation as described in IRC 509(a) has been secured.        
If the subordinates are described in IRC 501(c)(3), an affirmation from an officer has been secured stating that they are organized within 27 months from the date of the submission or if any are organized more than 27 months, that the organization agrees to accept the postmark date of their request as the effective date of the group exemption. (This does not apply to subordinates that are churches as classified under sections IRC 509(a)(1) and IRC 170(b)(1)(A)(i).) Also, you may consider granting relief under Reg. 301.9100-1.        
Verified that the parent organization has submitted a list of the names, addresses, and EIN’s (an SS-4 for those who have not yet had a number assigned) for all subordinates to be included in the group exemption.        
For any school affiliated with a church, the information has been submitted to comply with the provisions of Rev. Rul. 75-231, 1975-1 C.B. 158.        
Activities - Issues to consider and/or develop: YES NO N/A COMMENTS
If the subordinates are filing a group return, have you secured an SS-4 from the organization? A group return requires a separate EIN.        
If the organization has multiple subordinates, have you verified the organization type of each subordinate (corporation, association, trust)?        
If the organization wishes to use the formation date of each subordinate as the effective date of its exemption, have you obtained conformed copies of the organizing documents?        
If the organization does not wish to use the formation date of each subordinate as the effective date, have you determined why? If there are a large number of subordinates, if the subordinates were formed more than 27 months prior to application, or if there is another reason why the formation date would not be feasible, have you documented your case file appropriately?        
Have all of the activities of the subordinates been completely developed? Would each subordinate qualify for independent exemption?        
If the parent organization has only one subordinate, have you considered the advantages of group exemption to the applicant? What is its purpose of applying for a group exemption if the parent can conduct the activities of the subordinate itself, especially if the organizations share board members?        
Did you consider whether the subordinates share the same governing body or facility/address of the parent.        
Are the subordinates small churches? If so, consider obtaining a Schedule A for each subordinate. Did you verify membership, facility and activity issues for each small church? Did you consider upgrading to Grade 12 if any of the subordinates have less than 20 members? Church group exemptions should be scrutinized very closely.        
Did you consider whether the applicant or any of the subordinates meet Grade 12 case criteria? If so, you may want to upgrade the case, involve a Grade 12 agent or involve your manager.        
Did you consider requesting microfiche for the parent organization if it is already exempt? Did you review activities of the parent in relation to activities of the subordinates? If the parent had certain activities that required additional development, did you ask if subordinates are involved in the same activities?        
Did you question fundraising to determine if gaming, professional fundraisers, telemarketers, etc., are part of fundraising activities? Potential problem with organization holding bingo games: Organization can only hold a certain number of "sessions." Therefore, the parent sets up numerous subordinates that each hold sessions.        
Did you obtain complete financial information for the subordinates rather than just determining the source of the revenues or expenses?        
Are there multiple subordinates with different activities? If so, did you consider a refusal to rule? Group exemption letters are typically limited to organizations that are basically identical in form and function to the parent. Activities may be too broad to make a determination as to whether every subordinate will meet the requirements of the section. In cases where we will rule, did you develop activities and financial information of each subordinate, rather than obtaining a generalized statement or sample regarding how the subordinates as a whole will operate?        
Will the organization be the beneficiary of taxable or tax-exempt bonds? Taxable bonds may be acceptable. However, tax-exempt bonds are not. Does your case development specifically indicate "tax-exempt bonds" ?        
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Exhibit 7.20.4-5 
Potential Terrorist Connection Checklist (Rev. 10/2002)

Complete this Checklist only when the information in the case is consistent with the information in the Memorandum dated May 10, 2002, as revised.

EDS Case Number: _________________

Was this case identified in screening or in regular inventory? ____________

1. Transfer to EO Technical - NO Coordination Prior to Transfer Necessary
____Representation in Application of Suspected Terrorist Activity
____Credible Evidence of Suspected Terrorist Funding/Other Support
____Organization Listed in Comprehensive List of Terrorists
____Officer Listed in Comprehensive List of Terrorists
____Grantee or Similar Designee Listed in Comprehensive List of Terrorists

On Form 3778, write "Potential Terrorist Connection."

2. Coordinate with EO Technical
a. ____Applicant is organized or operated in or has affiliations with:

____Cuba

____Iran

____Iraq

____Libya

____North Korea

____Sudan

____Syria

____Other (complete 2.b.)


b. ____Strong likelihood of a possible terrorist connection: List reasons.
_________________________________________________________
_________________________________________________________
c. ____ EO Technical Contact determines transfer of case to EO Technical necessary.
d._____EO Technical Contact determines transfer of case to EO Technical not necessary. List reasons discussed.
_________________________________________________________
_________________________________________________________

3. Case Does Not Require Transfer or Coordination with EO Technical
a. List reasons case was considered:
_________________________________________________________
_________________________________________________________
b. Who made the determination that the case did not have a potential connection?
_________________________________________________________
_________________________________________________________

4. Make two copies of this checklist. Rubber-band one copy of this checklist to the outside of the file folder. Send the other checklist to IRS, TE/GE, Attn: Mr. Lewis, EO Group 7822, Room 4508, P.O. Box 2508, Cincinnati, OH 45201.

Exhibit 7.20.4-6 
Low Income Housing Tax Credit Limited Partnership Memorandum

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Exhibit 7.20.4-7 
VEBA Reference Guide

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Exhibit 7.20.4-8 
Processing Set-Aside Requests Under IRC 4942(g)(2)

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Exhibit 7.20.4-9 
Health Care Providers Reference Guide

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Exhibit 7.20.4-10 
Organizations Closely Affiliated With State or Indian Tribal Governments

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Exhibit 7.20.4-11 
Advance Approval of Individual Grant Procedures

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Exhibit 7.20.4-12 
Limited Liability Companies

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Exhibit 7.20.4-13 
Charter School Guide Sheet

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