[Federal Register Volume 62, Number 1 (Thursday, January 2, 1997)]
[Rules and Regulations]
[Pages 25-26]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32376]
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DEPARTMENT OF THE TREASURY
26 CFR Part 53
[TD 8705]
RIN 1545-AU65
Requirement of Return and Time for Filing
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final and temporary regulations.
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SUMMARY: This document contains final and temporary regulations
providing that disqualified persons and organization managers liable
for Internal Revenue Code section 4958 excise taxes are required to
file Form 4720. The regulations also specify the filing date for
returns for the period to which the new excise taxes applied
retroactively. These excise taxes are imposed on excess benefit
transactions between disqualified persons, as statutorily defined, and
sections 501(c)(3) and (4) organizations, except for private
foundations.
DATES: These regulations are effective January 2, 1997.
For dates of applicability, see Sec. 53.6071-1T(f) of these
regulations.
FOR FURTHER INFORMATION CONTACT: Phyllis Haney, (202) 622-4290 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Background
This document contains amendments to the Foundation and Similar
Excise Taxes regulations (26 CFR part 53) under sections 6011 and 6071.
These regulations provide guidance relating to the requirement of a
return to accompany payment of section 4958 excise taxes and the time
for filing that return. These rules were first published in Notice 96-
46 (1996-39 I.R.B. 7) (September 23, 1996).
Taxpayer Bill of Rights 2, Public Law 104-168, 110 Stat. 1452
(TBOR2), enacted July 30, 1996, added section 4958 to the Code. As
described more fully below, section 4958 imposes excise taxes on excess
benefit transactions. Section 4958 taxes apply retroactively to excess
benefit transactions occurring on or after September 14, 1995. The
taxes do not, however, 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.
An ``excess benefit transaction'' subject to tax under section 4958
is any transaction in which an economic benefit is provided by an
organization described in section 501(c)(3) (except for a private
foundation) or 501(c)(4) 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 the benefit. A ``disqualified person''
is any person who was, at any time during the 5-year period ending on
the date of the excess benefit transaction, in a position to exercise
substantial influence over the affairs of the organization.
Disqualified persons also include family members and certain entities
in which at least 35 percent of the control or beneficial interest are
held by persons described in the preceding sentence. An ``organization
manager'' is any officer, director, trustee, or any individual having
powers or responsibilities similar to those of any officer, director,
or trustee.
Section 4958 imposes three taxes. The first tax is equal to 25
percent of the excess benefit amount, and is to be paid by any
disqualified person who engages in an excess benefit transaction. The
second tax is equal to 200 percent of the excess benefit amount, and is
to be paid by any disqualified person if the excess benefit transaction
is not corrected within the taxable period. The third tax is equal to
10 percent of the excess benefit amount, and is to be paid by any
organization manager who knowingly participates in an excess benefit
transaction. The maximum amount of this third tax with respect to any
one excess benefit transaction may not exceed $10,000. These
regulations prescribe Form 4720 for calculating and paying the first
and third taxes described above.
TBOR2 also amended section 6033(b) to require section 501(c)(3)
organizations to report the amounts of the taxes paid under section
4958 with respect to excess benefit transactions involving the
organization, as well as any other information the Secretary may
require concerning those transactions. Section 6033(f) also was amended
to impose the same reporting requirements on section 501(c)(4)
organizations. Those amendments to section 6033 only apply to
organizations' returns for taxable years beginning after July 30, 1996.
These and other TBOR2 amendments to the reporting requirements for
section 501(c)(3) and (4) organizations are reflected on IRS Forms 990
and 990-EZ beginning with the 1996 versions.
Explanation of Provisions
The regulations provide that disqualified persons and organization
managers, as defined in sections 4958(f)(1) and (2), who are liable for
section 4958 excise taxes on excess benefit transactions, as defined in
section 4958(c)(1), are required to file a return on Form 4720. The
general rule is that returns will be due on or before the 15th day of
the fifth month following the close of the disqualified person's or
organization manager's taxable year. The regulations also provide that
returns on Form 4720 for taxable years ending after September 13, 1995,
and on or before July 30, 1996, will be due on or before December 15,
1996. See Notice 96-46 (1996-39 I.R.B. 7) (September 23, 1996).
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in EO 12866. Therefore, a
regulatory assessment is not required. It also has been determined that
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5)
does not apply to these regulations, and because the regulation does
not impose a collection of information on small entities, the
Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply.
Pursuant to section 7805(f) of the Internal Revenue Code, these
temporary regulations will be submitted to the Chief Counsel for
Advocacy of the Small Business Administration for comment on their
impact on small business.
Drafting Information
The principal author of these regulations is Phyllis Haney, Office
of Associate Chief Counsel (Employee Benefits and Exempt
Organizations). However, other personnel from the IRS and Treasury
Department participated in their development.
List of Subjects in 26 CFR Part 53
Excise taxes, Foundations, Investments, Lobbying, Reporting and
recordkeeping requirements.
[[Page 26]]
Adoption of Amendments to the Regulations
Accordingly, 26 CFR part 53 is amended as follows:
PART 53--FOUNDATION AND SIMILAR EXCISE TAXES
Paragraph 1. The authority citation for part 53 continues to read
as follows:
Authority: 26 U.S.C. 7805.
Sec. 53.6011-1 [Amended]
Par. 2. In Sec. 53.6011-1, paragraph (b) is amended by:
1. Removing from the first sentence, the language ``or 4955(a),''
and adding ``, 4955(a), or 4958(a),'' in its place.
2. Removing from the last sentence, the language ``or 4955(a),''
and adding ``, 4955(a), or 4958(a),'' in its place.
Par. 3. Section 53.6071-1T is added to read as follows:
Sec. 53.6071-1T Time for filing returns (temporary).
(a) through (e) [Reserved]. For further guidance see Sec. 53.6071-
1(a) through (e).
(f) Taxes imposed on excess benefit transactions engaged in by
organizations described in sections 501(c)(3) (except private
foundations) and 501(c)(4)--(1) General rule. A Form 4720 required by
Sec. 53.6011-1(b) for a disqualified person or organization manager
liable for tax imposed by section 4958(a) shall be filed by that person
on or before the 15th day of the fifth month following the close of
such person's taxable year.
(2) Special rule for taxable years ending after September 13, 1995,
and on or before July 30, 1996. A Form 4720 required by Sec. 53.6011-
1(b) for a disqualified person or organization manager liable for tax
imposed by section 4958(a) on an excess benefit transaction occurring
in such person's taxable year ending after September 13, 1995, and on
or before July 30, 1996, is due on or before December 15, 1996.
Dated: December 10, 1996.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
Donald C. Lubick,
Acting Assistant Secretary of the Treasury.
[FR Doc. 96-32376 Filed 12-31-96; 8:45 am]
BILLING CODE 4830-01-U
