202047011: A supporting-organization trust is reclassified as a private foundation for failing the Type II and Type III tests

Plain-English summary

An irrevocable charitable trust that is exempt under Section 501(c)(3) had been classified as a public charity, specifically a supporting organization under Section 509(a)(3), rather than a private foundation. The trust distributes its income to a list of named charities (historic sites and preservation and conservation groups). After an examination, the IRS issued this final adverse determination: the trust does not qualify as a supporting organization, so it is a private foundation. The trust argued it met the Type II test ("supervised or controlled in connection with" the supported charities). The IRS disagreed. A Type II supporting organization must be controlled or managed by the same persons who control the supported charities, and having one or two shared board members is not common control. The IRS also found the trust fails the Type III test: it does not give the supported charities the required notice (copies of its Form 990 and governing documents), the charities do not appoint its board or have a significant voice in its investments and grants (the responsiveness test), and it does not meet the integral part test because its grants are less than 10% of each supported charity's total support. Because it does not qualify under any of the three supporting-organization types, the trust is a private foundation, must file Form 990-PF, and owes the Section 4940 excise tax on net investment income. The organization's exemption under Section 501(c)(3) remains in effect. (This document is a scanned image; the full text below is a faithful transcription of a heavily degraded scan, and redacted names, dates, and dollar figures appear as blanks or zeros.)

Ruling snapshot

• Question: Does the trust qualify as a § 509(a)(3) supporting organization, or is it a private foundation?
• Outcome: Adverse determination: reclassified as a private foundation (§ 501(c)(3) exemption unaffected)
• Key authorities: IRC § 509(a)(3); Treas. Reg. § 1.509(a)-4(g), (h), (i); IRC § 4940

Full text (IRS public release)

Department of the Treasury Date:
; Internal Revenue Service

independent Office of Appeals Person to contact:
IRS 4330 Watt Avenue Name:
SA 7896 Employee ID Number:
Saaramanty CA Of 4 Phone:
Sacramento, CA 95821-7012
Fax:
Re:
EO Examination

Number: 202047011 Tax periods ended:
Release Date: 11/20/2020

Employer 1D number:

Uniform issue list (UIL):
509.01-04

Certified Mail
Dear Board of Trustees of

This is a final adverse determination regarding your private foundation classification under Internal Revenue
Code (the "Code") Section 509(a). Although you are exempt under Section 501 (c)(3) of the Code, you do not
qualify as a public charity described under IRC Section 509(a)(3) but, rather, as a private foundation described
under Section 509(a) of the Code effective .
We made the adverse determination for the following reasons:
does not meet the requirements of section 509(a)(3) of the Code: therefore, it is a

private foundation. This letter modifies our letter dated July 19XX. in which we determined that
was an organization described in section 509(a)(3) of the Code.
You're required to file Form 990-PF, Return of Private Foundation or Section 4947(a(1) Trust Treated as
Private Foundation, for the tax periods shown above and for all tax years thereafter, Mail your form to the
appropriate Internal Revenue Service Center per the form's instructions.
You're subject to Chapter 42 excise taxes, unrelated business income taxes, and employment taxes (where
applicable) based on your activities. Please see Publication 557, Tax-Exempt Status for Your Organization, for
more details.
You can get any forms or 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 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

Letter 1372 (Rev. 12-2017)
Catalog Number 40684C

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. Contact the clerk of the appropriate court for rules and the appropriate forms for
filing petitions for declaratory judgment. You can write to the courts at the following addresses:

United States Tax Court US Court of Federal Claims US District Court for the District of Columbia

400 Second Street, NW 717 Madison Place, NW 333 Constitution Avenue, NW
Washington, DC 20217 Washington, DC 20005 Washington, DC 20001

Note: We will not delay processing income tax returns and assessing any taxes due even if you file a petition for
declaratory judgment under Section 7428 of the Code.

Please refer to the enclosed Publication 892, How to Appeal an IRS Determination on Tax-Exempt Status, for
more information about the Appeals process.

You also have the right to contact the Taxpayer Advocate Service (TAS). 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.

TAS assistance is not a substitute for established IRS procedures, such as the formal appeals process. TAS
cannot reverse a legally correct tax determination, or extend the time fixed by law that you have to file a
petition in a United States Court.

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

Sincerely,

Appeals Team Manager

Enclosures:
Publication 892

ee!

Letter 1372 (Rev. 12-2017)
Catalog Number 40684C

Department of the Treasu Date:
va intemal Revenue Service J March6,2019
IRS Tax Exempt and Government Entitios Taxpayer Identification Number.

Exempt Organizations Examinations
Forr

Tax Year(s) Ended:
Person to Contact:

Employee iD:
Telephone:
Fax:
Address;

Manager's Contact information:

Employee (D:
Telephone:
Response Due Date: April 8, 20XX

CERTIFIED MAIL ~ Return Receipt Requested

Why you're receiving this letter
We enclosed 2 copy of our audit report, Form 886-4, Explanation of lems, explaining that we
propose to modify your organization's foundation status under Internal Revenue Code (IRC)

Section $00(a).
Your exempt status under IRC Section 601(c)(3) fs still in effect.

if you agree
if you haven't already, please sign the enclosed Form 6018, Consent io. Proposed Action, and

return it to the contact person shown al the fop of this letter. We'll issue a final feller modifying
your foundation status.
if you disagree

1. Song @ meeting or telephone conisrence with the manager shown at the top of this
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 stil be able to file a protest
   with IRS Appeals Office after the meeting or alter we consider the information.

The (RS Appeals Office is Independent of the Exempt Organizations division and
resoves most disputes Informally. if you file a protest, the auditing agent may ask you to

Letter 3620 (Rev 9-2017)
Gateiog Nombara4atiR

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
tnust 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 fetter. :

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 fram you
If you don't respond to this praposal within 30 calendar days from the date of this latter, we'll

issue a final letter modifying your foundation status.

Effect of modification of your foundation status

if you receive a final modification letter making you a private foundation or a private operating
foundation, you'll be required to fie annual returns on Form 990-PF, Return of Private
Foundation or Section 4947(a)(1) Trust Treated as Private Foundation.

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 triéd but haven't been able to resolve your problem with the IRS. {f you
qualify for TAS assistance, which is always free, TAS will do everything possibie to help you.

Visit www.taxpayeradvocate.irs.gov or call 877-777-4778,

Additional Information
You can get any of the forms and publications mentioned in this letter by visiting our website at

ov/forns- 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,

Paul Herzog

For Maria Hooke

Director, Exempt Organizations
Examinations

Enclosures:
Forms 886-A and 6018
Publications 3498 & 892

2 Latter 3620 (Rev 9-2017)
Catalag Number 34811R

F 886- A ‘Deparienerd of the Treasury ~ internat Revenue Service Schedule number
(May 2047) Explanations of Items shuns
Name of laxpayer e
ISSUE: Does meet the requirements to be a public charity as
described in IRC section $09(a)(3) or is it a private foundation?
FACTS:
( ) was established on as an irrevocable trust. ft
received its exempt status as exempt under IRC section 601(c)(3). At that lime, f was

determined it wasn't a private foundation because it met the definition of a public charity under
IRC section §09(a)(3). The administrative file shows thatwhen _ received Its exempt status it

was classified as a Type {ll organization.
The trust document requires that 0% (zero percent) or more of annual income be

distributed among one or more of nine charities. The charities are: , a historic
site owned by the ; the forthe chapter;

for the preservation of in 8

now known as ( }

The for preservation projects; The
for conservation and historic preservation projects; The for preservation
projects; and the . The trust added ‘
and to the list through resolutions of the trustees.

The trust document states it will distribute enough so that it meets the attentiveness requirement
under Treas. Reg. 1.609(a)-4(i)(3)(Ii). In the year ending a the organization did
distribute at least 0% of its income to 0 of the 0 organizations. The chart below shows which
organizations received donations from _—, the amounts given by ___, the total donations received
by the organizations, and the number of board members listed on the Forms 990 of the
organizations. The amounts given are for the year ending ;

Organizations listed amt given contribution no. on
trust document by. received the board.
» ~~ oO 0 0
0 0 ©
0 0 0
0 0 0
3) 0 0
0 0 0
0 0 0
0 0
0 0
0 0
Q
8)
Catalog Number 208 10W Page 4 wbsov ~~ SSS”:”*”:CUR OM BHAA Ree. 52017)

NSE ea Sama
si se

form BB6«A Cepadtmant ol the Treasury ~ intemal Revenue Servics ere
__ May2017) iz ___ Explanations of Items _ ores

Name of taxpayer
The boards of the and the are appointed by the govemor of A
Form 980 or a website for couldn't be located.

Form 990 Retum of Organization Exempt Form income Tax lists the folowing board
of directors: : ? # * a ‘
and left board
replaced. is the treasurer of ; was the chief financial officer of *
from through

; is on the board of , was the Center Director
of until . was a member of but not on the board.
Chapter of the - was on the executive
committee and is an Honorary Trustee. is a trustee. There are
trustees, officers, and honorary trustees forthe chapter, on the
board. The is a national organization that has offices and divisions in the

states and other countries. None of the chapters are set up as individual organizations; all fall
under the one organization. The national hires the state directors and managers to run the

program in the individual states.
Foundation: is listed as. a director.

is a Lifetime Trustee.

The boards of the supported organizations don't have the same members.

The board of directorsfor meet once a year. At the meeting it discusses the financial, hears
reports on the activities of the supported organizations, and decides how much to give to the
supported organizations.

The supported organizations send letters to _ requesting money and/or reports showing what
their activities were during the year and their financials.

Onits Form 990 _— stated # wasn't a private foundation because it met the requirements of Type Ii
Supporting Organization as defined in IRC section 509(a)(3). :

LAW:

IRC Section 609(a(3) provides that an organization which is organized and at all times operated
for the benefit of, to perform the function of, or fo carry out the purposes of one or more
organizations described in IRC 509(a)(1) and @); and t is operated, supervised, or controlied by,
or in connection with, or operated in connection with one or more organizations described in

Catalog Nuenber 2007047 “‘Paua 2

form BBB-A ~ : 6 Deparment of the Traasury ~ interna! Revenue Senice dus
(May 2017) Explanatl ons of Items or eb
Name of taxpayer ° oe

§09(a)(1) and (2); and it isn't controlled directly or indirectly by one or more disqualified persons
isn’t a private foundation.

Treas. Reg. 1.509(a)-4(h)(1) gives the definition of “supervised or controlled In connection with".
These are referred to as Type Il supporting organizations. For a supporting organization to be
“supervised or controlled in connection with” one or more publicly supported organizations, there
must be common supervision or control by the persons supervising or controlling both the
supporting organization and the publicly supported organizations to ensure that the supporting
organization will be responsive to the needs and requirements of the publicly supported
organizations. To meet such requirement, the control or management of the supporting
organization must be vested in the same persons that control or manage the publicly supported

organizations.

Treas. Reg. 1.509(a)-4(h)(2) provides that an organization won't meet the definiion of “supervised
or controlled in connection with” if It merely makes payments (mandatory or discretionary) to one
or more named publicly supported organizations even if the obligation to make the payments is
enforceable under state law and the supporting organization’s government instrument requires a
set amount be paid out. It states such arrangements don't provide a sufficient “connection”
between the supporting organization and the needs and requirements of the publicly supported
organization to constitute supervisions or contro! in connection with such organization.

Treas, Reg. 1.509(a)-4(i) gives the requirements to meet the meaning of “operated in connection
with’. This is referred to as a Type ill type supporting organization. To meet this type the
organization must satisfy the notification requirement, the responsiveness test, and the integral
part test.

The notification requirement requires that the supporting organization give the supported
organization(s) a written notice describing the type and amount of all of the support it had provided
in the previous year, a copy of its Form 990 Return of Organization Exempt from Income Tax, and
a copy of its governing documents.

The responsiveness test requires that the supported organization elects one or more of the
directors of the supporting organization, or that one or more of the board members of the
supporting organization is also on the supported organization board, or that the supporting
organization maintains a close working relationship with the supported organization, AND that the
supported organization has a significant voice in the investment policies of the supporting
organization, the timing of the grants, the manner of making grants, and the selection of the grant

recipienis.
The integral part test can be met by being functionally integrated or non-functionally integrated.

Functionally integrated means the supporting organization engages in activities substantially all of
which directly further the exempt purpose of one or more supported organizations, or the
supporting organization is the parent of the supported organizations, or the supporting
organization is supporting a governmentally supported organization. To meet the requirement of
engaging in activities that directly further the exempt purposes of the supported organization the
supporting organization must perform the functions of or carry out the purposes of the supported

Catalog Number 20010W Pags 3 wew.is.gov form BEG6-A (Rev, $2017)

‘Scheddle number”

Boma 886-A “Deparment of the Treasury ~ intemal Revenue Service
(May 2047) Explanations of Items an
fie ontaxpayer™ - “TEX TESA NG NGHOET LEST TOIT VE eon

wisi whi

organization(s) and but for the involvement of the supporting organization the supported
organization would normally be performing the activity.

_ Non-functionally integrated test requires the supporting organization to satisfy either the
distribution requirement or the attentiveness requirement. The distribution requirement is that the
supporting organization gives an amount that equals or exceeds distributable amount ~ 85% of the
supporting organization's adjusted net income for the prior year.

The attentiveness requirement is that the supporting organization distributes 1/3 or more of its
distributable amount to 1 or more supported organizations. The supported organization must be
attentive to the supporting organization. It is attentive if at least one of the following requirements
is satisfied: (1) supporting organization gives to the supported organization amounts that equal or
exceed 10% of the supported organization's total support, (2) the amount is necessary for the
supported organization to carry on its activity without interruption (has to be a substantial activity),
or (3) based on the consideration of all of the facts and circumstances, including number of
supported organizations, the length and nature of the relationship between the supported and
supporting organization, and the purpose to which the funds are put, the amount of support, etc.

TAXPAYER'S POSITION

feels that It meets the requirements under IRC section 609(a)(3)(B)() and Treas. Reg.
1.508(a)-4(h) as an organization which is “supervised or controlled in connection’ with one or
more such organizations. its arguments are written to show that it meets the requirements of a
Type fl supporting organization.

GOVERNMENT'S POSITION

doesn't meet the definition of a supporting organization in Treas. Reg. 1.509(a}-4. There are
three types of supporting organization: {} operated, supervised, or controlled by, II) supervised or
controlied in connection with, and 11) operated in connection with, one or more publicly supported
organizations. A supported organization is expected to have a say in the operation of the
supporiing organization as to the investment policies and how the grants are made; who to and
amounts,

Type | is defined in “Treas. Reg. 1.509(a)-4(g) - The relationship required under any one of
these terms Is comparable to that of a parent and subsidiary, where the subsidiary is under
the direction of, and accountable or responsible to, the parent organization. This relationship
is established by the fact that a majority of the officers, directors, or trustees of the
supporting organization are appointed or elected by the governing body, members of the
governing body, officers acting in their official capacity, or the membership of one or more

publicly supported organizations.

Type Il is defined In Treas. Reg. 1.509(a)-4(h). It requires common supervision or control by
the persons supervising or controlling both the supporting organization and the publicly
supported organization. The last sentence of paragraph (h)(1) says, “Therefore, in order to
meet such requirement, the control or management of the supporting organization must be
vested in the same persons that control or manage the publicly supported organizations.”

"Sa e MPRA OLUCOLCOLLLCOSOOROURRE OC MNOLOOOORDETNSSONAANAEAANC UMN HALLCOSSSSSLCCNCCTtUttCtS eet DANA ONT RA ERNE CSO ET AN NAA SHIM oh Si aaa ti8 saiucsgascbagptageaaaaya
Catalog Number 20810W Page 4 wav its gov For SBG-A (Rav. 52017)

~ Form BBE-A | : Dapartman & the Treacy ~ internal Revenus Service
| Explanations of items

Type ill is defined in Treas. Reg. 1.509(a)-4(i) ~ It requires that it meet the notification
requirement, the responsiveness test, and the integral part test.

The first step to determine if an organization qualifies under IRC section 509(8)(3) is to see if it
meets the definition of Type |, tl, or Ill. has stated it feels it meets the definition of a Type Il

supporting organization in the aggregate.

A supported organization is expected to have a say in the operation of the supporting organization
as to the investment policies and how the grants are made; amounts and who to,

As provided in Treas. Reg. 1.509(a}-4(h)(2) it Is no longer enough to make payments to the
supported organizations listed in the supporting organization's organizational documents. The
rules were changed in . There are no grandfather rules in place.

To qualify as a Type li supporting organization the supported and supporting organizations must
be controlled or managed by the same persons. Treas. Reg. 1.509(a)-4(h)(1) specifically states
that in order to. meet the requirement of “supervised or controlled in connection with” the contro! or
management of the supporting organization must be vested In the same persons that control or

manage the publicly supported organizations. has board members and there are
supported organizations fisted in the trust document. is on the board of
Foundation ~ it has board members. is on the board of ithas
board members. was managing director of . and
were on the board ofthe Chapter of the ~ithas on the state's board
and members on the national board. is listed as a Lifetime Trustee of and an
Honorary Trustee of Chapter of the . Normally, Honorary and Life Trustees

don't have a vote; they don’t have a fiduciary responsibility like the other trustees on the board.
The control/management of the supported organizations isn't vested in the same persons that are
in control/managementof . Having one or two of its board members on the board of a
supported organization isn't having the same board members.

states that of its board members were closely affillated with at least one of the
supported organizations. of board members were in positions of management/contro! of
~ one was the managing director and was the director. of board members was
also a member of , but only being a member of an organization isn't the same as being in
control or managing the organization therefore that wouldn't meet the requirements for a Type Il
supporting organization. works closely with , he was the former board
chair, and is now listed as a Lifetime Trustee. was on the board of the Chapter of
the and is listed as an honorary trustee. The organization has a
close working relationship with the involvement with was
involved in constructing the new visitor center at :

www ks.Ov Form BOO-A (Rev. 52017)

Catalog Humber so810W ae Page Da 5

nonin in

Form 886-A — ; Deparment of the Treeauy ~ intemal Revenue Senice
(May 2017) Explanations of items

Name of taxpayer Tex ientificalion Number (last ¢ digits}

The fact that the board members have close working relationships with the other organizations
doesn't meet the requirement of IRC 809(a)(3XB)(i) to be supervised or controlled in connection
with one or more organizations. The board members are individually involved with the other
organizations but the other organizations aren't involved with —.._ This is contrary to what the
regulations require; the supported organization is supposed to be involved in the operation of the
supporting organization. board members know what the supported organizations weni for
support, but the supported organizations have no say in the investments or selection of recipients

of the grant monies.

The examples in Treas, Reg. 1.509(a)-4(h)(3) show that the supported organization must have
persons onthe supporting organization's board. in example 1, the same persons are on the
board of the supported organization and the supporting organization, so & meets the definition of a
Type Il supporting organization. in example 2, none of the people on the supported organization's
board were on the supporting organization's board therefore, it didn't meet the requirements of
“supervised or controlled in connection with” so it wasn't a supporting organization. In example 3,
the supporting organization was set up to support a church. The trust document required that the
trustees of the supporting organization had to be active members or leaders in the church. This
meets the requirement of a Type |! supporting organization because the trustees of the supporting
organization are leaders in the supported organization. situation isn't like example 4 or 3.
There isn't enough overlap of control between the supported organizations and _ therefore, it
doesn't meet the requirements of a Type [| supporting organization.

has stated that supporting multiple organizations is permitted for a Type ll supporting
organization and i cites General Counsel Memorandum ( ) and Private Letter Ruling
(PLR) to support this. Unlike the supported organizations in the GCM and PLR were
all inter-related; they were part of the same health or hospital system. The supporting
organization was the parent of the others. In this case the supported organizations aren't related;
the purposes are similar, but alf of the supported organizations aren't working together like the
organizations in the GCM and PLR. Because the supported organizations aren't related to each
other orto, the relationship doesn’t match that of the GCM or PLR.

points out that in the GCM a rule of thumb is given that says, “no less than a majority of the
persons who control or manage the supporting organizations have the requisite commonality with
sons performing the same functions for each publicly supported organization supported or
nefited.” _ is trying to say that because a majority of its board members are on the boards of
the supported organizations that it meets this criterion. But that isn’t the case because the GCMis
saying the majority of the board members of the supporting organization have to be on the beards
of gach of the supported organizations. So, having one board member on a supported

organization board isn't a majority. is on the board of a supported organization that has
Q board members ~ this isn't a majority. is the board of a supported organization that
has 0 board members ~ this isn’t a majority. _ and were on the board of a state

chapterthathas members - this isn't a majority.

Catalog Numiber 20010W Page 6 www.is.gov Forn 886-A (Rev. 5-2017)

Form 886-A Department of the Treasury ~ intemal Revenue Service Schedule number
May 2017) | Explanations of items orenee
“Nome Of taxpayer ;™ identification Number (last 4 “| “Year/Period ended

The PLR states that the bylaws of the supporting organization are written to ensure the boards of
the supporting and the supported organizations have common members. The PLR met the
definition of the Type |] supporting organization because the boards had a majority of common
members. The supporting organizations were all affiliated. Thatisn't the case with .

The GCM and PLR point out that when the regulations were written Congress wanted 509(a)(3)
Type If organizations to have common boards. The last sentence of Treas. Reg. 1.509(a)-4(h)(1)
says, “Therefore, in order to meet such requirement, the control or management of the supporting
organization must be vested in the same persons that contro! or manage the publicly supported
organizations.” _— clearly doesn’t have the sarne persons in control or managing the publicly

supported organizations.

As provided in Treas. Reg. 1.509(a)-4(h)(2) it is not enough to make payments to the supported
organizations listed in the supporting organization's organizational documents to qualify as a Type
il supporting organization. There isn't enough connection between the supporting organization

and the needs and requirements of the publicly supported organization.

The supported organizations have no say in the operation of — . They aren't asked for input on
how to invest the money or how to distribute the earnings to the publicly supported organizations.
Because there is no common board between the organizations doesn't qualify as a Type Il

organization. asserts that having a board member on the board of the supported organizatio

ls sufficient but if isn't; the regulation requires common boards. :

Treas. Reg. 1.509(a)-4(d) does allow for more than one supported organization and to designate
supported organizations by class rather than by name for Type | and Type Ii organizations.
Before a supporting organization can use this paragraph to select which groups {to donate to it has
to determine if t meets the definition of a Type | under paragraph (g) or a Type fl under paragraph
(h). In the case of a Type | or Type Il supporting organization, the supported organization(s) are
in control of the supporting organization. Type | because the supporting organization is a
subsidiary of the supported. Type {| because the same persons control or manage the supporting
and the supported organizations. By being in contro! the supported organizations are determining
the investment policies and the amounts given and who given to; therefore, the supporting
organization can't decide to give to a different organization unless the supported organization
allows it. This section doesn't mean that if an organization gives to more than one organization
that it meets the definition of a Type Il. To be a Type {i supporting organization there must be
common supervision and/or contro! of both the supported and the supporting organizations, As
shown above doesn’t have common supervision or control with the supported organizations

therefore, it doesn't meet the definition of a Type Il supporting organization.
Type lil supporting organizations as defined in Treas. Reg. 1.509(a)(4)()) require that the

supported organizations have a significant voice in the investment policy, grants being made -
who to and the amounts, and when the grants are paid. To meet the definition of a type Ill

Form B86-A Rev. Ba0T7)

Catalog Number 20810W Page 7 Wen IS.pOv

Schedule number
ox exhibit

supporting organization an organization must meet the notification requirement, the
responsiveness test, and the integral part test.

Tomeet the notification requirement the supporting organization must provide a written notice to a

principal officer of the supporting organization describing the type and amount of all support it

__ provided during the preceding year, a copy of the Form 990 for the previous year, and a copy of.
the most recent governing documents. doesn't provide the supported organization with

copies of its Form 990 or its governing documents. ‘

The responsiveness test has two parts: relationship of the officers and significant voice. The
relationship test requires that one or more officers, directors, or trustees of the supporting
organization are elected or appointed by the supported organization or one or more of the
governing body of the supported organization also holds important offices in the supporting
organization, or the board of the supporting organization maintains a close and continuous
working relationship with the board of the supported organization. And the supported
organization must have a significant voice in the investment policies of the supporting org,
the timing of grants, the manner of making grants, and the selection of grant recipients, and
in the use of the income and assets of the supporting organization.

in this case none of the supported organizations elect or appoint personsto — board and none
of them know of the financials of or the decision-making process on the grants. Therefore,

doesn't meet the responsiveness test.

The integral part test can be met by being functionally integrated or non-functionally integrated.
To be functionally integrated the supporting organization engages in activities that directly further
the exernpt purpose of one or more supported organizations or that the supporting organization is
the parent of the supported. Engaging in activities that further the supported organization's
exempt purpose means carrying out the functions of the supported organization and without the
supporting organization doing those activities wouldn't be done. doesn't engage in any
activities for the supported organizations — it gives money which isn’t carrying on an activity for the
supported organization. Therefore, it isn't functionally integrated.

The non-functionally integrated tes! requires that the supporting organization meets the
distribution requirement or the attentiveness requirement. To meet the distribution requirement
the supporting organization needs to distribute 85% of its adjusted net income for the prior year to
one or more supported organizations. The attentiveness requirement is to ensure that the
Supported organization is attentive to the supporting organization. To meet the attentiveness
requirement the supporting organization has to give an amount to the supported organization that
exceeds 10% of the total support of the supported organization or the amount given is enough to
carry on an activity without interruption,

doesn’t meet the definition of a Type il! Supporting Organization because it doesn't meet the
notification requirement or the responsiveness test. it hasn't established if it meets the integral

camumaeans

Fom 886-A mov. 82017

Chain Aa Numihar 908 100 Page & thaw Ie ane

Form 886-A Sepertment of the Treasury ~ Internat Revere Sanice Schedule number
way) | ___._ Explanations of Items ei deans
Name of taxpayer ‘ax identification Number (last 4 digits) | Year/Period ended

part test; the amounts received by the supported organizations are less than 10% of their total
support,

All types of supported organizations require that the supported organizations have a say in what
the supporting organization does either by having a board member appointed by or elected by the
supported organization (Type |), having common boards (Type Il), or “aperating in connection
with" where the supported organization has a significant voice in the operations of the supporting

organization (Type ffl).

_ knows what the supported organizations want and need; it receives copies of reports and
requests from the supported organizations. This is opposite of what the three types of supporting
organizations defined in IRC section §09(a)(3) require. Therefore, doesn't meet the definition

of a supporting organization.

States that it meets the requirements of a Type If supporting organization because a majority

of its trustees are hoard members, officers or leaders in the supported organizations, # is
significantly involved, and it is responsive to the needs of the supported organizations. !t says that f

out its -member board are in positions of control or supervision in the supported
organizations. As shown above, this doesn't meet the requirements of a Type [i organization in
Treas. Reg. 1.509(a)-4(h). The significant involvement and being responsive to the supported
organization aren't part of the Type Il requirements. The requirement is that contro! or
management of the supporting organization must be vested in the same persons that control or
manage the supported organization(s). Having one board member on the board of the supported

organization doesn't meet this requirement.
CONCLUSION ;
— doesn't meet the requirements of IRC Section 509(a)(3) therefore, it is a
private foundation. It needs to file Forms 990-PF Return of Private Foundation and pay the tax on
its net investment income beginning with the year ending IRC section 4940
gives the definition and requirements for the excise tax on net investmem income. The first year
the tax would be 0% of the net investment income but in subsequent years it will be 0% if the
organization continues to meet the minimum distribution requirements.

Form 886+ (Rev, 6-2017)_

‘soi sinonsinsose

Catslog Number 208100 Page 2... worw.r8. gov