§4946 — Definitions and special rules
14 cases·14 cited
Statute Text — 26 U.S.C. §4946
For purposes of this subchapter, the term “disqualified person” means, with respect to a private foundation, a person who is—
a substantial contributor to the foundation,
a foundation manager (within the meaning of subsection (b)(1)),
an owner of more than 20 percent of—
the total combined voting power of a corporation,
the profits interest of a partnership, or
the beneficial interest of a trust or unincorporated enterprise,
which is a substantial contributor to the foundation,
a member of the family (as defined in subsection (d)) of any individual described in subparagraph (A), (B), or (C),
a corporation of which persons described in subparagraph (A), (B), (C), or (D) own more than 35 percent of the total combined voting power,
a partnership in which persons described in subparagraph (A), (B), (C), or (D) own more than 35 percent of the profits interest,
a trust or estate in which persons described in subparagraph (A), (B), (C), or (D) hold more than 35 percent of the beneficial interest,
only for purposes of section 4943, a private foundation—
which is effectively controlled (directly or indirectly) by the same person or persons who control the private foundation in question, or
substantially all of the contributions to which were made (directly or indirectly) by the same person or persons described in subparagraph (A), (B), or (C), or members of their families (within the meaning of subsection (d)), who made (directly or indirectly) substantially all of the contributions to the private foundation in question, and
only for purposes of section 4941, a government official (as defined in subsection (c)).
For purposes of paragraph (1), the term “substantial contributor” means a person who is described in section 507(d)(2).
For purposes of paragraphs (1)(C)(i) and (1)(E), there shall be taken into account indirect stockholdings which would be taken into account under section 267(c), except that, for purposes of this paragraph, section 267(c)(4) shall be treated as providing that the members of the family of an individual are the members within the meaning of subsection (d).
For purposes of paragraphs (1)(C)(ii) and (iii), (1)(F), and (1)(G), the ownership of profits or beneficial interests shall be determined in accordance with the rules for constructive ownership of stock provided in section 267(c) (other than paragraph (3) thereof), except that section 267(c)(4) shall be treated as providing that the members of the family of an individual are the members within the meaning of subsection (d).
For purposes of this subchapter, the term “foundation manager” means, with respect to any private foundation—
an officer, director, or trustee of a foundation (or an individual having powers or responsibilities similar to those of officers, directors, or trustees of the foundation), and
with respect to any act (or failure to act), the employees of the foundation having authority or responsibility with respect to such act (or failure to act).
For purposes of subsection (a)(1)(I) and section 4941, the term “government official” means, with respect to an act of self-dealing described in section 4941, an individual who, at the time of such act, holds any of the following offices or positions (other than as a “special Government employee”, as defined in
section 202(a) of title 18
, United States Code):
an elective public office in the executive or legislative branch of the Government of the United States,
an office in the executive or judicial branch of the Government of the United States, appointment to which was made by the President,
a position in the executive, legislative, or judicial branch of the Government of the United States—
which is listed in schedule C of rule VI of the Civil Service Rules, or
the compensation for which is equal to or greater than the lowest rate of basic pay for the Senior Executive Service under
section 5382 of title 5
, United States Code,
a position under the House of Representatives or the Senate of the United States held by an individual receiving gross compensation at an annual rate of $15,000 or more,
an elective or appointive public office in the executive, legislative, or judicial branch of the government of a State, possession of the United States, or political subdivision or other area of any of the foregoing, or of the District of Columbia, held by an individual receiving gross compensation at an annual rate of $20,000 or more,
a position as personal or executive assistant or secretary to any of the foregoing, or
a member of the Internal Revenue Service Oversight Board.
For purposes of subsection (a)(1), the family of any individual shall include only his spouse, ancestors, children, grandchildren, great grandchildren, and the spouses of children, grandchildren, and great grandchildren.
Treasury Regulations
- Treas. Reg. §Treas. Reg. §53.4946-1 Definitions and special rules
- Treas. Reg. §Treas. Reg. §53.4946-1(a) §53.4946-1(a)
- Treas. Reg. §Treas. Reg. §53.4946-1(b) §53.4946-1(b)
- Treas. Reg. §Treas. Reg. §53.4946-1(c) §53.4946-1(c)
- Treas. Reg. §Treas. Reg. §53.4946-1(d) §53.4946-1(d)
- Treas. Reg. §Treas. Reg. §53.4946-1(e) §53.4946-1(e)
- Treas. Reg. §Treas. Reg. §53.4946-1(f) Members of police and fire departments, except for those department heads who, under the facts and circumstances of the case, independently perform policymaking functions as a significant part of their activities.
- Treas. Reg. §Treas. Reg. §53.4946-1(g) Government official—(1) In general.
- Treas. Reg. §Treas. Reg. §53.4946-1(h) Members of the family.
- Treas. Reg. §Treas. Reg. §53.4946-1(i) §53.4946-1(i)
- Treas. Reg. §Treas. Reg. §53.4946-1(v) The holder of a position as personal or executive assistant or secretary to any individual described in subdivision (i), (ii), (iii), or (iv) of this subparagraph.
14 Citing Cases
agraph (1) or (2), (B) is operated, supervised, or controlled by or in connection with one or more organizations, described in paragraph (1) or (2), and (C) is not controlled directly or indirectly by one or more disqualified persons (as defined in section 4946) other than foundation managers and other than one or more organizations described in paragraph (1) or (2); * * * The above provision was "designed to insure that a supported organization has the ability and motivation to properly oversee
3, petitioner submitted to the IRS a copy of the organization’s bylaws. Pertaining to governance of petitioner, the bylaws reiterated that there were to be at least three directors, a majority of which could not consist of disqualified persons under section 4946. The bylaws provided that for purposes of conducting business, a majority of the entire board would constitute a quorum, with a majority vote thereof determining board action. The instrument further - 10 - specified that any director, ex