Taxpayer Bill of Rights 2
SEC. 4958. TAXES ON EXCESS BENEFIT TRANSACTIONS
(b) ADDITIONAL TAX ON THE DISQUALIFIED PERSON- In any case in which an initial tax is imposed by subsection (a)(1) on an excess benefit transaction and the excess benefit involved in such transaction is not corrected within the taxable period, there is hereby imposed a tax equal to 200 percent of the excess benefit involved. The tax imposed by this subsection shall be paid by any disqualified person referred to in subsection (f)(1) with respect to such transaction.
(c) EXCESS BENEFIT TRANSACTION; EXCESS BENEFIT- For purposes of this section--
(1) EXCESS BENEFIT TRANSACTION:
(A) IN GENERAL- The term `excess benefit transaction' means any transaction in which an economic benefit is provided by an applicable tax-exempt organization directly or indirectly to or for the use of any disqualified person if the value of the economic benefit provided exceeds the value of the consideration (including the performance of services) received for providing such benefit. For purposes of the preceding sentence, an economic benefit shall not be treated as consideration for the performance of services unless such organization clearly indicated its intent to so treat such benefit.
(B) EXCESS BENEFIT- The term `excess benefit' means the excess referred to in subparagraph (A).
(2) AUTHORITY TO INCLUDE CERTAIN OTHER PRIVATE INUREMENT- To the extent provided in regulations prescribed by the Secretary, the term `excess benefit transaction' includes any transaction in which the amount of any economic benefit provided to or for the use of a disqualified person is determined in whole or in part by the revenues of 1 or more activities of the organization but only if such transaction results in inurement not permitted under paragraph (3) or (4) of section 501(c), as the case may be. In the case of any such transaction, the excess benefit shall be the amount of the inurement not so permitted.
(d) SPECIAL RULES- For purposes of this section--
(1) JOINT AND SEVERAL LIABILITY- If more than 1 person is liable for any tax imposed by subsection (a) or subsection (b), all such persons shall be jointly and severally liable for such tax.
(2) LIMIT FOR MANAGEMENT- With respect to any 1 excess benefit transaction, the maximum amount of the tax imposed by subsection (a)(2) shall not exceed $10,000.
(e) APPLICABLE TAX-EXEMPT ORGANIZATION- For purposes of this subchapter, the term `applicable tax-exempt organization' means--
(1) any organization which (without regard to any excess benefit) would be described in paragraph (3) or (4) of section 501(c) and exempt from tax under section 501(a), and (2) any organization which was described in paragraph (1) at any time during the 5-year period ending on the date of the transaction.
Such term shall not include a private foundation (as defined in section 509(a)).
(f) OTHER DEFINITIONS- For purposes of this section--
(1) DISQUALIFIED PERSON- The term `disqualified person' means, with respect to any transaction--
(A) any person who was, at any time during the 5-year period ending on the date of such transaction, in a position to exercise substantial influence over the affairs of the organization, (B) a member of the family of an individual described in subparagraph (A), and (C) a 35-percent controlled entity.
(2) ORGANIZATION MANAGER- The term `organization manager' means, with respect to any applicable tax-exempt organization, any officer, director, or trustee of such organization (or any individual having powers or responsibilities similar to those of officers, directors, or trustees of the organization).
(3) 35-PERCENT CONTROLLED ENTITY-
(A) IN GENERAL- The term `35-percent controlled entity' means--
(i) a corporation in which persons described in subparagraph (A) or (B) of paragraph (1) own more than 35 percent of the total combined voting power, (ii) a partnership in which such persons own more than 35 percent of the profits interest, and (iii) a trust or estate in which such persons own more than 35 percent of the beneficial interest.
(B) CONSTRUCTIVE OWNERSHIP RULES- Rules similar to the rules of paragraphs (3) and (4) of section 4946(a) shall apply for purposes of this paragraph.
(4) FAMILY MEMBERS- The members of an individual's family shall be determined under section 4946(d); except that such members also shall include the brothers and sisters (whether by the whole or half blood) of the individual and their spouses.
(5) TAXABLE PERIOD- The term `taxable period' means, with respect to any excess benefit transaction, the period beginning with the date on which the transaction occurs and ending on the earliest of--
(A) the date of mailing a notice of deficiency under section 6212 with respect to the tax imposed by subsection (a)(1), or (B) the date on which the tax imposed by subsection (a)(1) is assessed.
(6) CORRECTION- The terms `correction' and `correct' mean, with respect to any excess benefit transaction, undoing the excess benefit to the extent possible, and taking any additional measures necessary to place the organization in a financial position not worse than that in which it would be if the disqualified person were dealing under the highest fiduciary standards.'.
(b) APPLICATION OF PRIVATE INUREMENT RULE TO TAX-EXEMPT ORGANIZATIONS DESCRIBED IN SECTION 501(c)(4)-
(1) IN GENERAL- Paragraph (4) of section 501(c) is amended by inserting `(A)' after `(4)' and by adding at the end the following:
(B) Subparagraph (A) shall not apply to an entity unless no part of the net earnings of such entity inures to the benefit of any private shareholder or individual.'.
(2) SPECIAL RULE FOR CERTAIN COOPERATIVES- In the case of an organization operating on a cooperative basis which, before the date of the enactment of this Act, was determined by the Secretary of the Treasury or his delegate, to be described in section 501(c)(4) of the Internal Revenue Code of 1986 and exempt from tax under section 501(a) of such Code, the allocation or return of net margins or capital to the members of such organization in accordance with its incorporating statute and bylaws shall not be treated for purposes of such Code as the inurement of the net earnings of such organization to the benefit of any private shareholder or individual. The preceding sentence shall apply only if such statute and bylaws are substantially as such statute and bylaws were in existence on the date of the enactment of this Act.
(c) TECHNICAL AND CONFORMING AMENDMENTS-
(1) Subsection (e) of section 4955 is amended-- (A) by striking `SECTION 4945' in the heading and inserting `SECTIONS 4945 AND 4958', and (B) by inserting before the period `or an excess benefit for purposes of section 4958'.
(2) Subsections (a), (b), and (c) of section 4963 are each amended by inserting `4958,' after `4955,'.
(3) Subsection (e) of section 6213 is amended by inserting 4958 (relating to private excess benefit),' before 4971'.
(4) Paragraphs (2) and (3) of section 7422(g) are each amended by inserting 4958,' after 4955,'.
(5) Subsection (b) of section 7454 is amended by inserting or whether an organization manager (as defined in section 4958(f)(2)) has `knowingly' participated in an excess benefit transaction (as defined in section4 958(c)),' after `section 4912(b),'.
(6) The table of subchapters for chapter 42 is amended by striking the last item and inserting the following:
SUBCHAPTER D. Failure by certain charitable organizations to meet certain qualification requirements.
SUBCHAPTER E. Abatement of first and second tier taxes in certain cases.'.
(d) EFFECTIVE DATES-
(1) IN GENERAL- The amendments made by this section (other than subsection (b)) shall apply to excess benefit transactions occurring on or after September 14, 1995.
(2) BINDING CONTRACTS- The amendments referred to in paragraph (1) shall not apply to any benefit arising from a transaction pursuant to any written contract which was binding on September 13, 1995, and at all times thereafter before such transaction occurred.
(3) APPLICATION OF PRIVATE INUREMENT RULE TO TAX-EXEMPT ORGANIZATIONS DESCRIBED IN SECTION 501(c)(4)-
(A) IN GENERAL- The amendment made by subsection (b) shall apply to inurement occurring on or after September 14, 1995.
(B) BINDING CONTRACTS- The amendment made by subsection (b) shall not apply to any inurement occurring before January 1, 1997, pursuant to a written contract which was binding on September 13, 1995, and at all times thereafter before such inurement occurred.