Organizations Not Required To File Form 1023
Some organizations are not required to file Form 1023.
These include:
- Churches, interchurch organizations of local units of a
church, conventions or associations of churches, or integrated
auxiliaries of a church, such as a men's or women's organization,
religious school, mission society, or youth group.
- Any organization (other than a private foundation) normally
having annual gross receipts of not more than $5,000 (see Gross
receipts test, later).
These organizations are exempt automatically if they meet the
requirements of section 501(c)(3).
Filing Form 1023 to establish exemption.
If the organization wants to establish its exemption with the IRS
and receive a ruling or determination letter recognizing its exempt
status, it should file Form 1023. By establishing its exemption,
potential contributors are assured by the IRS that contributions will
be deductible. A subordinate organization (other than a private
foundation) covered by a group exemption letter does not have to
submit a Form 1023 for itself.
Private foundations.
See Private Foundations and Public Charities, later, in
this chapter, for more information about the additional notice
required from an organization in order for it not to be presumed to be
a private foundation and for the additional information required from
a private foundation claiming to be an operating foundation.
Gross receipts test.
For purposes of the gross receipts test, an organization normally
does not have more than $5,000 annually in gross receipts if:
- During its first tax year the organization received gross
receipts of $7,500 or less,
- During its first 2 years the organization had a total of
$12,000 or less in gross receipts, and
- In the case of an organization that has been in existence
for at least 3 years, the total gross receipts received by the
organization during the immediately preceding 2 years, plus the
current year, are $15,000 or less.
An organization with gross receipts more than the amounts in the
gross receipts test, unless otherwise exempt from filing Form 1023,
must file a Form 1023 within 90 days after the end of the period in
which the amounts are exceeded. For example, an organization's gross
receipts for its first tax year were less than $7,500, but at the end
of its second tax year its gross receipts for the 2-year period
were more than $12,000. The organization must file Form 1023 within 90
days after the end of its second tax year.
If the organization had existed for at least 3 tax years and had
met the gross receipts test for all prior tax years but fails to meet
the requirement for the current tax year, its tax-exempt status for
the prior years will not be lost even if Form 1023 is not filed within
90 days after the close of the current tax year. However, the
organization will not be treated as a section 501(c)(3) organization
for the period beginning with the current tax year and ending with the
filing of Form 1023.
Example.
An organization is organized and operated exclusively for
charitable purposes and is not a private foundation. It was
incorporated on January 1, 1996, and files returns on a calendar-year
basis. It did not file a Form 1023. The organization's gross receipts
during the years 1996 through 1999 were as follows:
1996 |
$3,600 |
1997 |
2,900 |
1998 |
400 |
1999 |
12,600 |
The organization's total gross receipts for 1996, 1997, and 1998
were $6,900. Therefore, it did not have to file Form 1023 and is
exempt for those years. However, for 1997, 1998, and 1999 the total
gross receipts were $15,900. Therefore, the organization must file
Form 1023 within 90 days after the end of its 1999 tax year. If it
does not file within this time period, it will not be exempt under
section 501(c)(3) for the period beginning with tax year 1999 and
ending when the Form 1023 is received by the IRS. The organization,
however, will not lose its exempt status for the tax years ending
before January 1, 1999.
The IRS will consider applying the Commissioner's discretionary
authority to extend the time for filing Form 1023. See the procedures
for this extension discussed earlier.
Articles of Organization
Your organization must include a conformed copy of its articles of
organization with the application for recognition of exemption. This
may be its trust instrument, corporate charter, articles of
association, or any other written instrument by which it is created.
Organizational Test
The articles of organization must limit the
organization's purposes to one or more of those described at the
beginning of this chapter and must not expressly empower it
to engage, other than as an insubstantial part of its activities, in
activities that do not further one or more of those purposes. These
conditions for exemption are referred to as the organizational
test.
Section 501(c)(3) is the provision of law that grants exemption to
the organizations described in this chapter. Therefore, the
organizational test may be met if the purposes stated in the articles
of organization are limited in some way by reference to section
501(c)(3).
The requirement that your organization's purposes and powers must
be limited by the articles of organization is not satisfied
if the limit is contained only in the bylaws or other rules or
regulations. Moreover, the organizational test is not satisfied
by statements of your organization's officers that you intend to
operate only for exempt purposes. Also, the test is not satisfied by
the fact that your actual operations are for exempt purposes.
In interpreting an organization's articles, the law of the state
where the organization was created is controlling. If an organization
contends that the terms of its articles have a different meaning under
state law than their generally accepted meaning, such meaning must be
established by a clear and convincing reference to relevant court
decisions, opinions of the state attorney general, or other
appropriate state authorities.
The following are examples illustrating the
organizational test.
Example 1.
Articles of organization state that an organization is formed
exclusively for literary and scientific purposes within the meaning of
section 501(c)(3) of the Internal Revenue Code. These articles
appropriately limit the organization's purposes. The organization
meets the organizational test.
Example 2.
An organization, by the terms of its articles, is formed to engage
in research without any further description or limitation. The
organization will not be properly limited as to its purposes since all
research is not scientific. The organization does not meet the
organizational test.
Example 3.
An organization's articles state that its purpose is to receive
contributions and pay them over to organizations that are described in
section 501(c)(3) and exempt from taxation under section 501(a). The
organization meets the organizational test.
Example 4.
If a stated purpose in the articles is the conduct of a school of
adult education and its manner of operation is described in detail,
such a purpose will be satisfactorily limited.
Example 5.
If the articles state the organization is formed for charitable
purposes, without any further description, such language ordinarily
will be sufficient since the term charitable has a generally accepted
legal meaning. On the other hand, if the purposes are stated to be
charitable, philanthropic, and benevolent, the organizational
requirement will not be met since the terms philanthropic
and benevolent have no generally accepted legal meaning and,
therefore, the stated purposes may, under the laws of the state,
permit activities that are broader than those intended by the
exemption law.
Example 6.
If the articles state an organization is formed to promote American
ideals, or to foster the best interests of the people, or to further
the common welfare and well-being of the community, without any
limitation or provision restricting such purposes to accomplishment
only in a charitable manner, the purposes will not be
sufficiently limited. Such purposes are vague and may be accomplished
other than in an exempt manner.
Example 7.
A stated purpose to operate a hospital does not meet the
organizational test since it is not necessarily charitable. A hospital
may or may not be exempt depending on the manner in which it is
operated.
Example 8.
An organization that is expressly empowered by its articles to
carry on social activities will not be sufficiently limited
as to its power, even if its articles state that it is organized and
will be operated exclusively for charitable purposes.
Dedication and Distribution of Assets
Assets of an organization must be permanently dedicated
to an exempt purpose. This means that should an organization dissolve,
its assets must be distributed for an exempt purpose
described in this chapter, or to the federal government or to a state
or local government for a public purpose. If the assets could be
distributed to members or private individuals or for any other
purpose, the organizational test is not met.
Dedication.
To establish that your organization's assets will be permanently
dedicated to an exempt purpose, the articles of organization should
contain a provision insuring their distribution for an exempt purpose
in the event of dissolution. Although reliance may be placed upon
state law to establish permanent dedication of assets for exempt
purposes, your organization's application probably can be processed
much more rapidly if its articles of organization include a provision
insuring permanent dedication of assets for exempt purposes.
Distribution.
Revenue Procedure 82-2, 1982-1 C.B. 367, identifies the
states and circumstances in which the IRS will not require an express
provision for the distribution of assets upon dissolution in the
articles of organization. The procedure also provides a sample of an
acceptable dissolution provision for organizations required to have
one.
If a named beneficiary is to be the distributee, it must
be one that would qualify and would be exempt within the meaning of
section 501(c)(3) at the time the dissolution takes place. Since the
named beneficiary at the time of dissolution may not be qualified, may
not be in existence, or may be unwilling or unable to accept the
assets of the dissolving organization, a provision should be made for
distribution of the assets for one or more of the purposes specified
in this chapter in the event of any such contingency.
Sample Articles of Organization
The following are examples of a charter (Draft A) and a declaration
of trust (Draft B) that contain the required information as to
purposes and powers of an organization and disposition of its assets
upon dissolution. You should bear in mind that requirements for these
instruments may vary under applicable state law.
See page 25 for the special provisions required in a private
foundation's governing instrument in order for it to qualify for
exemption.
Draft A
Articles of Incorporation of the undersigned, a majority
of whom are citizens of the United States, desiring to form a
Non-Profit Corporation under the Non-Profit Corporation Law of
, do hereby certify:
First:
The name of the Corporation shall be
.
Second:
The place in this state where the principal office of the
Corporation is to be located is the City of
,
County.
Third:
Said corporation is organized exclusively for charitable,
religious, educational, and scientific purposes, including, for such
purposes, the making of distributions to organizations that qualify as
exempt organizations under section 501(c)(3) of the Internal Revenue
Code, or the corresponding section of any future federal tax code.
Fourth:
The names and addresses of the persons who are the initial trustees
of the corporation are as follows:
Name
Address
Fifth:
No part of the net earnings of the corporation shall inure to the
benefit of, or be distributable to its members, trustees, officers, or
other private persons, except that the corporation shall be authorized
and empowered to pay reasonable compensation for services rendered and
to make payments and distributions in furtherance of the purposes set
forth in Article Third hereof. No substantial part of the activities
of the corporation shall be the carrying on of propaganda, or
otherwise attempting to influence legislation, and the corporation
shall not participate in, or intervene in (including the publishing or
distribution of statements) any political campaign on behalf of or in
opposition to any candidate for public office. Notwithstanding any
other provision of these articles, the corporation shall not carry on
any other activities not permitted to be carried on (a) by a
corporation exempt from federal income tax under section 501(c)(3) of
the Internal Revenue Code, or the corresponding section of any future
federal tax code, or (b) by a corporation, contributions to which are
deductible under section 170(c)(2) of the Internal Revenue Code, or
the corresponding section of any future federal tax code.
If reference to federal law in articles of incorporation imposes a
limitation that is invalid in your state, you may wish to substitute
the following for the last sentence of the preceding paragraph:
Notwithstanding any other provision of these articles, this
corporation shall not, except to an insubstantial degree, engage in
any activities or exercise any powers that are not in furtherance of
the purposes of this corporation.
Sixth:
Upon the dissolution of the corporation, assets shall be
distributed for one or more exempt purposes within the meaning of
section 501(c)(3) of the Internal Revenue Code, or the corresponding
section of any future federal tax code, or shall be distributed to the
federal government, or to a state or local government, for a public
purpose. Any such assets not so disposed of shall be disposed of by a
Court of Competent Jurisdiction of the county in which the principal
office of the corporation is then located, exclusively for such
purposes or to such organization or organizations, as said Court shall
determine, which are organized and operated exclusively for such
purposes.
In witness whereof, we have hereunto subscribed our names this
day of
20
.
Draft B
The
Charitable Trust. Declaration of Trust made as of the
day of
, 20
, by
, of
, and
, of
, who hereby declare and agree that they have received
this day from
, as Donor, the sum of Ten Dollars ($10) and that they
will hold and manage the same, and any additions to it, in trust, as
follows:
First:
This trust shall be called The
Charitable Trust.
Second:
The trustees may receive and accept property, whether real,
personal, or mixed, by way of gift, bequest, or devise, from any
person, firm, trust, or corporation, to be held, administered, and
disposed of in accordance with and pursuant to the provisions of this
Declaration of Trust; but no gift, bequest or devise of any such
property shall be received and accepted if it is conditioned or
limited in such manner as to require the disposition of the income or
its principal to any person or organization other than a charitable
organization or for other than charitable purposes within
the meaning of such terms as defined in Article Third of this
Declaration of Trust, or as shall in the opinion of the trustees,
jeopardize the federal income tax exemption of this trust pursuant to
section 501(c)(3) of the Internal Revenue Code, or the corresponding
section of any future federal tax code.
Third:
A. The principal and income of all property received and accepted
by the trustees to be administered under this Declaration of Trust
shall be held in trust by them, and the trustees may make payments or
distributions from income or principal, or both, to or for the use of
such charitable organizations, within the meaning of that term as
defined in paragraph C, in such amounts and for such charitable
purposes of the trust as the trustees shall from time to time select
and determine; and the trustees may make payments or distributions
from income or principal, or both, directly for such charitable
purposes, within the meaning of that term as defined in paragraph D,
in such amounts as the trustees shall from time to time select and
determine without making use of any other charitable organization. The
trustees may also make payments or distributions of all or any part of
the income or principal to states, territories, or possessions of the
United States, any political subdivision of any of the foregoing, or
to the United States or the District of Columbia but only for
charitable purposes within the meaning of that term as defined in
paragraph D. Income or principal derived from contributions by
corporations shall be distributed by the trustees for use solely
within the United States or its possessions. No part of the net
earnings of this trust shall inure or be payable to or for the benefit
of any private shareholder or individual, and no substantial part of
the activities of this trust shall be the carrying on of propaganda,
or otherwise attempting, to influence legislation. No part of the
activities of this trust shall be the participation in, or
intervention in (including the publishing or distributing of
statements), any political campaign on behalf of or in opposition to
any candidate for public office.
B. The trust shall continue forever unless the trustees terminate
it and distribute all of the principal and income, which action may be
taken by the trustees in their discretion at any time. On such
termination, assets shall be distributed for one or more exempt
purposes within the meaning of section 501(c)(3) of the Internal
Revenue Code, or the corresponding section of any future federal tax
code, or shall be distributed to the federal government, or to a state
or local government, for a public purpose. The donor authorizes and
empowers the trustees to form and organize a nonprofit corporation
limited to the uses and purposes provided for in this Declaration of
Trust, such corporation to be organized under the laws of any state or
under the laws of the United States as may be determined by the
trustees; such corporation when organized to have power to administer
and control the affairs and property and to carry out the uses,
objects, and purposes of this trust. Upon the creation and
organization of such corporation, the trustees are authorized and
empowered to convey, transfer, and deliver to such corporation all the
property and assets to which this trust may be or become entitled. The
charter, bylaws, and other provisions for the organization and
management of such corporation and its affairs and property shall be
such as the trustees shall determine, consistent with the provisions
of this paragraph.
C. In this Declaration of Trust and in any amendments to it,
references to charitable organizations or charitable
organization mean corporations, trusts, funds, foundations, or
community chests created or organized in the United States or in any
of its possessions, whether under the laws of the United States, any
state or territory, the District of Columbia, or any possession of the
United States, organized and operated exclusively for charitable
purposes, no part of the net earnings of which inures or is payable to
or for the benefit of any private shareholder or individual, and no
substantial part of the activities of which is carrying on propaganda,
or otherwise attempting to influence legislation, and which do not
participate in or intervene in (including the publishing or
distributing of statements) any political campaign on behalf of or in
opposition to any candidate for public office. It is intended that the
organization described in this paragraph C shall be entitled to
exemption from federal income tax under section 501(c)(3) of the
Internal Revenue Code, or the corresponding section of any future
federal tax code.
D. In this Declaration of Trust and in any amendments to it, the
term charitable purposes shall be limited to and shall include
only religious, charitable, scientific, literary, or educational
purposes within the meaning of those terms as used in section
501(c)(3) of the Internal Revenue Code, or the corresponding section
of any future federal tax code, but only such purposes as also
constitute public charitable purposes under the law of trusts of the
State of
.
Fourth:
This Declaration of Trust may be amended at any time or times by
written instrument or instruments signed and sealed by the trustees,
and acknowledged by any of the trustees, provided that no amendment
shall authorize the trustees to conduct the affairs of this trust in
any manner or for any purpose contrary to the provisions of section
501(c)(3) of the Internal Revenue Code, or the corresponding section
of any future federal tax code. An amendment of the provisions of this
Article Fourth (or any amendment to it) shall be valid only if and to
the extent that such amendment further restricts the trustees'
amending power. All instruments amending this Declaration of Trust
shall be noted upon or kept attached to the executed original of this
Declaration of Trust held by the trustees.
Fifth:
Any trustee under this Declaration of Trust may, by written
instrument, signed and acknowledged, resign his office. The number of
trustees shall be at all times not less than two, and whenever for any
reason the number is reduced to one, there shall be, and at any other
time there may be, appointed one or more additional trustees.
Appointments shall be made by the trustee or trustees for the time in
office by written instruments signed and acknowledged. Any succeeding
or additional trustee shall, upon his or her acceptance of the office
by written instrument signed and acknowledged, have the same powers,
rights and duties, and the same title to the trust estate jointly with
the surviving or remaining trustee or trustees as if originally
appointed.
None of the trustees shall be required to furnish any bond or
surety. None of them shall be responsible or liable for the acts or
omissions of any other of the trustees or of any predecessor or of a
custodian, agent, depositary or counsel selected with reasonable care.
The one or more trustees, whether original or successor, for the
time being in office, shall have full authority to act even though one
or more vacancies may exist. A trustee may, by appropriate written
instrument, delegate all or any part of his or her powers to another
or others of the trustees for such periods and subject to such
conditions as such delegating trustee may determine.
The trustees serving under this Declaration of Trust are authorized
to pay to themselves amounts for reasonable expenses incurred and
reasonable compensation for services rendered in the administration of
this trust, but in no event shall any trustee who has made a
contribution to this trust ever receive any compensation thereafter.
Sixth:
In extension and not in limitation of the common law and statutory
powers of trustees and other powers granted in this Declaration of
Trust, the trustees shall have the following discretionary powers.
a) To invest and reinvest the principal and income of the trust in
such property, real, personal, or mixed, and in such manner as they
shall deem proper, and from time to time to change investments as they
shall deem advisable; to invest in or retain any stocks, shares,
bonds, notes, obligations, or personal or real property (including
without limitation any interests in or obligations of any corporation,
association, business trust, investment trust, common trust fund, or
investment company) although some or all of the property so acquired
or retained is of a kind or size which but for this express authority
would not be considered proper and although all of the trust funds are
invested in the securities of one company. No principal or income,
however, shall be loaned, directly or indirectly, to any trustee or to
anyone else, corporate or otherwise, who has at any time made a
contribution to this trust, nor to anyone except on the basis of an
adequate interest charge and with adequate security.
b) To sell, lease, or exchange any personal, mixed, or real
property, at public auction or by private contract, for such
consideration and on such terms as to credit or otherwise, and to make
such contracts and enter into such undertakings relating to the trust
property, as they consider advisable, whether or not such leases or
contracts may extend beyond the duration of the trust.
c) To borrow money for such periods, at such rates of interest, and
upon such terms as the trustees consider advisable, and as security
for such loans to mortgage or pledge any real or personal property
with or without power of sale; to acquire or hold any real or personal
property, subject to any mortgage or pledge on or of property acquired
or held by this trust.
d) To execute and deliver deeds, assignments, transfers, mortgages,
pledges, leases, covenants, contracts, promissory notes, releases, and
other instruments, sealed or unsealed, incident to any transaction in
which they engage.
e) To vote, to give proxies, to participate in the reorganization,
merger or consolidation of any concern, or in the sale, lease,
disposition, or distribution of its assets; to join with other
security holders in acting through a committee, depositary, voting
trustees, or otherwise, and in this connection to delegate authority
to such committee, depositary, or trustees and to deposit securities
with them or transfer securities to them; to pay assessments levied on
securities or to exercise subscription rights in respect of
securities.
f) To employ a bank or trust company as custodian of any funds or
securities and to delegate to it such powers as they deem appropriate;
to hold trust property without indication of fiduciary capacity but
only in the name of a registered nominee, provided the trust property
is at all times identified as such on the books of the trust; to keep
any or all of the trust property or funds in any place or places in
the United States of America; to employ clerks, accountants,
investment counsel, investment agents, and any special services, and
to pay the reasonable compensation and expenses of all such services
in addition to the compensation of the trustees.
Seventh:
The trustees' powers are exercisable solely in the fiduciary
capacity consistent with and in furtherance of the charitable purposes
of this trust as specified in Article Third and not otherwise.
Eighth:
In this Declaration of Trust and in any amendment to it, references
to trustees mean the one or more trustees, whether original or
successor, for the time being in office.
Ninth:
Any person may rely on a copy, certified by a notary public, of the
executed original of this Declaration of Trust held by the trustees,
and of any of the notations on it and writings attached to it, as
fully as he might rely on the original documents themselves. Any such
person may rely fully on any statements of fact certified by anyone
who appears from such original documents or from such certified copy
to be a trustee under this Declaration of Trust. No one dealing with
the trustees need inquire concerning the validity of anything the
trustees purport to do. No one dealing with the trustees need see to
the application of anything paid or transferred to or upon the order
of the trustees of the trust.
Tenth:
This Declaration of Trust is to be governed in all respects by the
laws of the State of
.
Trustee
Trustee
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