FAMILY TRUST OF MASSACHUSETTS, INC. v. UNITED STATES OF AMERICA
MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on 9/24/2012. (lcrbw2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FAMILY TRUST OF MASSACHUSETTS, INC. )
Civil Action No. 11-00680 (RBW)
UNITED STATES OF AMERICA
This case arises from a claim brought under a section of the Internal Revenue Code,
specifically, 26 U.S.C. § 7428(a)(2) (2006), which allows a party to request declaratory relief
from a United States District Court if the Internal Revenue Service (“IRS”) fails to make a
determination on its request for tax-exempt status within 270 days, Complaint (“Compl.”) at 1,
and the case is currently before the Court on the parties’ cross-motions for summary judgment.
United States’ Motion for Summary Judgment (“Gov’t’s Mot.”) at 1; Plaintiff’s Cross-Motion
for Summary Judgment and Memorandum in Opposition to Defendant’s Motion for Summary
Judgment (“Pl.’s Mem.”) at 1. The plaintiff, the Family Trust of Massachusetts, Inc. (“FTM”),
filed an application with the IRS for tax-exempt status on November 17, 2005, Administrative
Record (“AR”) at 00001, and the IRS has yet to make a determination. For the reasons set forth
below, the Court will grant the IRS’s motion for summary judgment, and deny the FTM’s crossmotion for summary judgment. 1
In addition to the previously cited materials, in rendering its decision on the cross-motions, the Court
considered the United States’ Memorandum in Support of Motion for Summary Judgment (“Gov’t’s Mem.”), The
(Continued . . . )
I. FACTUAL BACKGROUND
The FTM is a trustee for over 300 disabled and elderly individuals who participate in a
pooled-asset special needs trust program. 2 AR at 00015-16; AR at 00055-56; AR at 00334-335.
A pooled-asset special needs trust that meets the requirements of the Medicaid Statute allows a
disabled beneficiary or his or her family to establish a trust account that will supplement, but not
replace, the benefits the beneficiary receives from Supplemental Security Income (“SSI”),
Medicaid, and other governmental benefits programs. AR at 00420. It essentially allows
disabled beneficiaries to “maintain their federal Medicaid and/or [SSI] eligibility, despite having
assets in excess of federally allowed limits.” Gov’t’s Mem. at 1.
The FTM was founded by Peter Macy (“Mr. Macy”), a private Massachusetts attorney
who specializes in elder law. AR at 00016. Mr. Macy incorporated the FTM as a special needs
trust in 2003. AR at 00011; AR at 00021. He serves as President, Treasurer, and sole Executive
Director, and his law office is listed as the FTM’s principal place of business. AR at 00016; AR
at 00025. His “duties as Executive Director and Treasurer include presiding over meetings of the
board of directors and supervising the day-to-day business matters of the [FTM], including
financial matters, bookkeeping, and corresponding directly with outside parties.” AR at 00016.
He “works with the [FTM] daily, averaging two hundred and sixty hours per year.” Id.
Mr. Macy refers his own disabled clients to the FTM “if they meet the criteria of [the]
FTM’s charitable class.” AR at 00222. Additional clients have been obtained via legal or health
care referrals to Macy, i.e., through “word-of-mouth in the Elder Law legal community.” AR at
( . . . continued)
United States’ Memorandum in Reply in Support of its Motion for Summary Judgment and in Opposition to
Plaintiff’s Motion for Summary Judgment (“Gov’t’s Reply”), Plaintiff’s Reply Memorandum in Support of its
Cross-Motion for Summary Judgment (“Pl.’s Reply”), along with the parties’ supporting statements of facts.
The Omnibus Budget Reconciliation Act of 1993, Pub. L. 106-66, 107 Stat. 622-24, which amended 42
U.S.C. § 1396p (2006) (“Medicaid Statute”), created this category of “special needs trust.”
00018; AR at 00079. Since 2005, the FTM’s clientele has increased from 20 beneficiaries to
over 300, AR at 00068; AR at 00328; AR at 00314, and the trust “hopes to expand the number of
participants,” AR at 00016. Consequently, annual revenues also rose from $5,825 in 2004, AR
at 00102, Lines 12 & 18, to $667,679 in 2009, AR at 00551, Lines 12 & 19.
On November 21, 2005, the FTM applied for a determination from the IRS that it is an
organization encompassed by § 501(c)(3) and therefore tax-exempt under § 501(a) of the Internal
Revenue Code. See 26 U.S.C. §§ 501(a) & 501(c)(3) (2006); AR at 00001. The IRS
acknowledged receipt of the application on November 28, 2005, and until at least August of
2007, the FTM continued to respond to numerous requests for further information and
explanations. AR at 00047; AR at 00054; AR at 00077; AR at 00097A; AR at 00098-99; AR at
00152-155. On February 12, 2008, the IRS issued a proposed adverse determination letter to the
FTM. AR at 00161-169. Despite the FTM’s response to the IRS’s proposed adverse
determination, AR at 00186A, and the FTM’s continued cooperation with subsequent requests
from the IRS for information, e.g., AR at 00187; AR at 00217D; AR at 00242, the IRS has yet to
issue to the plaintiff “a notice of determination,” Compl. ¶ 6. As a result, the FTM initiated this
action under 26 U.S.C. § 7428(a)(2), seeking a declaration by this Court that it “is exempt from
federal income taxation.” Id. at 1.
II. STANDARD OF REVIEW
This Court has “original jurisdiction of any civil action against the United States provided
in . . . [§] 7428 . . . of the Internal Revenue Code of 1986.” 28 U.S.C. § 1346(e) (2006)
(amended 2011). And, § 7428 “permits [the Court of Federal Claims], the United States Tax
Court and the United States District Court for the District of Columbia to issue declaratory
judgments on the initial qualification of an organization for tax exempt status under
Revenue Code] § 501(c)(3) if a plaintiff has exhausted its administrative remedies.” Church of
the Visible Intelligence that Governs the Universe v. United States, 4 Cl. Ct. 55, 60 (1983). “An
organization requesting the determination . . . shall be deemed to have exhausted its
administrative remedies with respect to a failure by the Secretary [of the Department of the
Treasury] to make a determination with respect to such issue at the expiration of 270 days after
the date on which the request for such determination was made if the organization has taken, in a
timely manner, all reasonable steps to secure such determination.” 26 U.S.C. § 7428(b)(2).
Because the FTM took all reasonable steps to secure a determination in a timely manner, and not
having received a determination before 270 days had elapsed after its request was submitted, the
Court agrees, as the defendant concedes, that the FTM has satisfied the jurisdictional
requirements of § 7428(b)(2). See Gov’t’s Mem. at 13.
“The standard of review in [this case] is de novo and the scope of review is limited to the
administrative record.” Arlie Found. v. I.R.S., 283 F. Supp. 2d 58, 61 (D.D.C. 2003). “The
legislative history of § 7428 makes it clear that Congress intended that this [C]ourt follow the
practices of the Tax Court in § 7428 declaratory judgment actions.” Easter House v. United
States, 12 Cl. Ct. 476, 482-483 (1987) (citing Visible Intelligence, 4 Cl. Ct. at 60); see B.S.W.
Group, Inc. v. Comm’r, 70 T.C. 352, 353 (1978). Thus, “the Court's decision will be based upon
the assumption that the facts as represented in the administrative record . . . are true.” Tax Court
Upon consideration of the parties’ cross-motions for summary judgment, “the [C]ourt
shall grant summary judgment only if one of the moving parties,” Arlie, 283 F. Supp. 2d at 61,
shows that “there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law,” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “When
faced with cross-motions for summary judgment, th[is C]ourt must review each motion
separately on its own merits ‘to determine whether either of the parties deserves judgment as a
matter of law.’” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003); see also Fair
Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.
2001) (“It is well-settled in this circuit and others that the filing of cross-motions for summary
judgment . . . does not vitiate the court's responsibility to determine whether disputed issues of
material fact are present.”) (internal quotations omitted). “The evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in [its] favor.” Estate of Parsons v.
Palestinian Auth., 651 F.3d 118, 123 (D.C. Cir. 2011) (citing Andersen v. Liberty Lobby, 477
U.S. 242, 255 (1986)). Additionally, “a moving party is ‘entitled to a judgment as a matter of
law’ [when] the nonmoving party has failed to make a sufficient showing on an essential element
of [its] case with respect to which [it] has the burden of proof.” Maydak v. United States, 630
F.2d 166, 181 (D.C. Cir. 2010) (citing Celotex, 477 U.S. at 322-323). And here, despite the
plaintiff’s assertions to the contrary, Compl. at 1, “[t]he burden is on [the FTM] to establish that
it meets [the] statutory requirements” of § 501(c)(3), New Dynamics Found. v. United States, 70
Fed. Cl. 782, 799 (2006) (citing, inter alia, IHC Health Plans, Inc. v. Comm’r, 325 F.3d 1188,
1193 (10th Cir. 2003)); see also Found. of Human Understanding v. United States, 88 Fed. Cl.
203, 212 (2009) (“Courts have recognized that exemptions from tax are matters of ‘legislative
grace,’ and, accordingly, the burden of establishing entitlement to an exemption is on the
The plaintiff claims that neither this Court, nor any other “court has decided the issue” of whether § 7491 is
applicable to declaratory judgment actions. Pl.’s Reply at 5. However, contrary to the plaintiff’s understanding of
Polm Family Found., Inc. v. United States, 655 F. Supp. 2d 125 (D.D.C. 2009), see Pl.’s Reply at 5 (“Polm . . . did
not consider [§] 7491”), this Judge did consider the issue. In Polm, the issue of whether § 7491 is applicable in such
cases was raised in the parties’ pleadings, and footnote 4 of the Court’s opinion clearly demonstrates, by
implication, that this Court considered the issue. By relying on Tax Court Rule 142(a)(1) in placing the burden on
(Continued . . . )
III. LEGAL ANALYSIS
For the Court to declare the FTM exempt from federal income taxation, the
Administrative Record must demonstrate that it meets three requirements under §§ 501(a) and
(c)(3): “(1) it is organized and operated exclusively for an exempt purpose; (2) its net earnings do
not inure to the benefit of any private shareholder or individual; and (3) its activities do not . . .
attempt to influence legislation.” Visible Intelligence, 4 Cl. Ct. at 61. The IRS does not
contend that the FTM is an organization that seeks to influence legislation. Gov’t’s Mem. at 1
(“[P]laintiff operates its Medicaid-qualified trust in a commercial manner that reflects private
business purposes.”); see Gov’t’s Response to Pl.’s Stmt. of Facts at 19 (“Plaintiff has a
commercial purpose.”). That leaves only the first two requirements for analysis, and because the
organization purpose prong is the more difficult to assess, the Court will first address the issue of
private inurement. See Presbyterian and Reformed Pub. Co. v. Comm’r, 743 F.2d 148, 153 (3d
Cir. 1984) (employing similar approach).
A. Do the FTM’s net earnings inure to the benefit of any individual?
This assessment requires the Court to determine whether “the earnings of [the FTM]
inure to the private benefit of” an individual. Presbyterian and Reformed Pub. Co., 743 F.2d at
153. “The term ‘net earnings’ in the inurement-of-benefit clause . . . has been construed to
permit an organization to incur ordinary and necessary expenditures in the course of its
operations without losing its tax-exempt status.” Founding Church of Scientology v. United
( . . . continued)
the taxpayer to demonstrate exempt status in a declaratory judgment action, and necessarily rejecting the provision
in Rule 142(a)(2), which directs the Court to shift the burden under the circumstances required by § 7491, the Court
implicitly found that § 7491 was not controlling in declaratory judgment actions. Polm, 655 F. Supp. 2d at 128 n.4.
States, 412 F.2d 1197, 1200 (Ct. Cl.), cert. denied, 397 U.S. 1009 (1970). However, “an
examination [of the Internal Revenue Code] reveals unmistakable evidence that, underlying all
relevant parts of the Code, is the intent that entitlement to tax exemption depends on meeting
certain common law standards of charity—namely, that an institution seeking tax-exempt status
must serve a public purpose.” Bob Jones Univ. v. United States, 461 U.S. 574, 586 (1983). “An
organization is not . . . operated exclusively for one or more of the [statutorily exempt] purposes .
. . unless it serves a public rather than a private interest.” 26 C.F.R. § 1.501(c)(3)-1(d)(1)(ii). To
meet this requirement, the FTM must establish that it is not “operated for the benefit of private
interests such as designated individuals, the creator or his family, shareholders of the
organization, or persons controlled, directly or indirectly, by such private interests.” 26 C.F.R. §
“The public-benefit requirement highlights the quid pro quo nature of tax exemptions: the
public is willing to relieve an organization from the burden of taxation in exchange for the public
benefit it provides,” IHC Health Plans, 325 F.3d at 1195 (citing Geisinger Health Plan v.
Comm’r, 985 F.2d 1210, 1215 (3d Cir. 1993)), because “[f]or every dollar that a man contributes
to these public charities, educational, scientific, or otherwise, the public gets 100 percent,” Bob
Jones, 461 U.S. at 590 (citation omitted). “The exemption from taxation of money and property
devoted to charitable and other purposes is based on the theory that the Government is
compensated for the loss of revenue by its relief from financial burdens which would otherwise
have to be met by appropriations from other public funds, and by the benefits resulting from the
promotion of the general welfare.” Bob Jones, 461 U.S. at 590 (citations and quotations
omitted). In essence, anything less than “100 percent” would deny the public of at least some tax
revenue to which it is entitled, and, therefore, “no part of the net earnings . . . which inures to the
benefit of any private shareholder or individual” is permitted. 26 U.S.C. § 501(c)(3); see Orange
County Agr. Soc., Inc. v. Comm’r, 893 F.2d 529, 534 (2d Cir. 1990) (“An organization will not
qualify for tax-exempt status if even a small part of its income inures to a private individual.”).
The term “individual” in the inurement clause of § 501(c)(3) “has been interpreted to
mean an insider of the charity.” United Cancer Council, Inc. v. Comm’r, 165 F.3d 1173, 1176
(7th Cir. 1999) (citing Orange County, 893 F.2d at 534). “A substantial body of caselaw has
explored the concept of private benefit within the framework of the relationship between an
organization claiming tax-exempt status and its founder (or small group of related insiders).”
Rameses School of San Antonio, Texas v. Comm’r, 93 T.C.M. (CCH) 1092 (2007) (citing
cases). Of the factors emerging repeatedly, “payment of salary . . . to the founder without any
accompanying evidence or analysis of the reasonableness of the amounts” is “indicative of
prohibited inurement and private benefit.” Id. “A charity is not to siphon its earnings to its
founder, or the members of its board, or their families, or any . . . insider.” United Cancer
Council, 165 F.3d at 1176. Ultimately, “[t]he test is functional” and “looks to the reality of
control rather than to the insider’s place in a formal table of organization.” Id.
The IRS alleges, Gov’t’s Reply at 21, and the Administrative Record demonstrates that
Macy has complete and effective control over the FTM, AR at 00001; AR at 00016; AR at
00025. He admittedly established the trust and has nurtured it since its inception, and has
afforded himself a position of considerable influence in the organization. The Court finds that
“[a]n organizational structure like [the FTM]’s[,] entailing domination by the founder[,] raises
concern about the potential for abuse unless allayed by other information in the record.” Visible
Intelligence, 4 Cl. Ct. at 62 (citing Founding Church of Scientology, 188 Ct. Cl. at 498). And
although “domination does not necessarily disqualify [the FTM] from exemption,” id. (citing
Bubbling Well Church of Universal Love, Inc. v. Comm’r, 74 T.C. 531, 535 (1980)), such
circumstances do require “open and candid disclosure of all [relevant] facts . . . so that the Court
. . . can be assured that it is not sanctioning an abuse of the revenue laws,” Bubbling Well, 74
T.C. at 535. “If such disclosure is not made, the logical inference is that the facts, if disclosed,
would show that [the FTM] fails to meet the requirements of section 501(c)(3).” Id.
The Court must, therefore, consider whether the FTM’s disclosure was “open and
candid” in a manner sufficient for the Court to determine whether Mr. Macy’s compensation was
reasonable. While “payment of a reasonable salary to an employee of the organization does not
automatically result in inurement, . . . an excessive salary will.” Easter House v. United States,
12 Cl. Ct. 476, 487 (1987) (internal citation omitted). “Whether a salary is reasonable or
excessive is a question of fact,” id.; see also Church of Scientology of California v. Comm’r, 823
F.2d 1310, 1317 (9th Cir. 1987), and “[t]he value of [reasonable] services is the amount that
would ordinarily be paid for like services by like enterprises . . . under like circumstances (i.e.,
reasonable compensation),” 26 C.F.R. § 53.4958-4(b)(1)(ii)(A). While the FTM claims that it
sets Mr. Macy’s salary in accordance with the Internal Revenue Code, it does not actually offer
authoritative comparability data for the Court to determine whether the salary is, in fact,
reasonable, but relies instead on the strength of the Administrative Record. Pl.’s Mem. at 13-14.
The Administrative Record, however, contains only the FTM’s internal justifications for Mr.
Macy’s salary. AR at 00179-180; AR at 00082-83 ¶ 16. The FTM finds no support in the
Administrative Record for its position beyond the assertions it has previously made to the IRS
regarding what comparable services would cost if performed by a similarly qualified individual.
AR at 00217H. For the Court to determine whether Mr. Macy’s salary is reasonable, it is not
enough for the FTM to simply say that “disinterested Directors determined that the compensation
was reasonable given the scope of Mr. Macy’s duties, the number of beneficiaries served by [the]
FTM and looking at comparable positions.” Id.
The Court is unfortunately left only with the knowledge that Mr. Macy’s salary has
steadily increased in conjunction with the expansion of the services provided by the FTM and the
infusion of funds into the trust, facts that weigh heavily against the FTM, as evidenced by its
adamant, albeit futile, objection to the inclusion of its 2009 Tax Return as part of the
Administrative Record. Order, Family Trust of Massachusetts v. United States of America, 11cv-680 (RBW) (D.D.C. June 7, 2012); AR at 00557. The evidence makes clear that Mr. Macy’s
salary has been elevated commensurate with the FTM’s increasing profitability, as it shows that
between 2004 and 2009, the FTM’s annual excess revenues increased from $5,197, AR at 00102,
Line 21, to $362,524, AR at 00551, Line 19, while Mr. Macy’s compensation followed suit,
growing from $9,000 per year to $70,000 per year. See AR at 00102-148; AR at 00340-365; AR
at 00557; AR at 00572.
Seeking to avoid the pitfall that potentially arises from the growth in this salary, the FTM
suggests that if Mr. Macy’s normal billing fee of $250 per hour is taken into consideration, then
not only was his salary reasonable, but he was actually “undercompensated through the years.”
Pl.’s Mem. at 14. Moreover, the FTM claims that Mr. Macy “contributed about $100,000 of
unpaid services through the years to [the] FTM.” Id. The FTM asks the Court to infer that such
a contribution outweighs any compensation Mr. Macy has received, and that no earnings
ultimately inured to his benefit. Pl.’s Mem. at 15. The Court is not so easily swayed. Such an
inference is undermined by the fact that the amount of purportedly donated funds received by the
FTM from Mr. Macy over the years is measured in terms of sacrifice by Mr. Macy, suggesting
that the monetary value gained by the FTM equals the value of his lost billable hours. This
assertion asks the Court to speculate, and, more important, is unsupported by the Administrative
The flaw in the FTM’s attempt to label Mr. Macy’s compensation as reasonable by
measuring it against his sacrificed time is that it ignores the Internal Revenue Code’s
requirement that a comparison be made between the level of his compensation and “the amount
that would ordinarily be paid for like services by like enterprises . . . under like circumstances.”
26 C.F.R. § 53.4958-4(b)(1)(ii)(A). According to the Special Needs Trust: Administration
Manual, a special needs trust does not have to be administered by an attorney. AR at 00416.
Rather, “laypersons, such as friends and family of a person with disabilities, and . . .
professionals, including attorneys, financial planners, and social workers” are capable of
administering a special needs trust. Id. The record is devoid of reliable evidence showing that
all the services provided by Mr. Macy amounted to legal services and that he received
compensation in an “amount that would ordinarily be paid for like services.” 26 C.F.R. §
53.4958-4(b)(1)(ii)(A). The Administrative Record does show that
[t]he determination of reasonable compensation is made through informal
contacts with other organizations that manage similar pooled trust programs and
through a review of hours spent on Family Trust related activities through the
year, and typical hourly rates are applied. [And] each person’s time is valued
commensurately with his or her professional hourly rate, and adjusted downward
to account for the non-profit nature of Family Trust and its current early stage of
AR at 00018 (emphasis added). But, unfortunately for the FTM, the Court cannot rely on its
“informal contacts” to determine whether Mr. Macy’s compensation was reasonable; it must rely
on what is actually contained in the Administrative Record. Moreover, the plaintiff offers no
authority to support its belief that a charitable organization must necessarily pay a salary
commensurate with the employee’s primary occupation or skill level.
“Although control of financial decisions by individuals who appear to benefit personally
from certain expenditures does not necessarily indicate inurement of benefit to private
individuals, those factors coupled with little or no facts in the administrative record to indicate
the reasonableness and appropriateness of the expenses are sufficient to convince [a court] that
there is indeed prohibitive private inurement.” Orange County, 893 F.2d at 534 (quoting Unitary
Mission Church v. Comm’r, 74 T.C. 507, 515 (1980)). Because the Administrative Record
clearly demonstrates Mr. Macy’s overwhelming control of the FTM, and, at the same time,
reveals an absence of “comparability data” showing the reasonableness of his compensation, the
Court “can[not] be assured that it is not sanctioning an abuse of the revenue laws.” Bubbling
Well, 74 T.C. at 535; New Dynamics, 70 Fed. Cl. at 802 (“It is well accepted that, in initial
qualification cases such as this, gaps in the administrative record are resolved against the
applicant . . . , at least where the party with the burden of proof also controls the relevant
B. Is the FTM organized and operated exclusively for an exempt purpose?
“In order to be exempt as an organization described in [§] 501(c)(3), [the FTM] must
[show that it is] both organized and operated exclusively for one or more [exempt]
purposes . . . .” 26 CFR § 1.501(c)(3)-1(a)(1). Because the government concedes that the FTM
was organized for an exempt purpose, the Court need only address the question of whether it is
operated exclusively for an exempt purpose. Gov’t’s Mem. at 15; Pl.’s Mem. at 4. The FTM
“will be regarded as operated exclusively for one or more exempt purposes only if it engages
Citing multiple cases, the court in New Dynamics stated that “[w]hile such an adverse inference generally
is more a product of common sense than of the common law, here, it derives added support from [§ 7428] itself,
which emphasizes the need for a taxpayer to exhaust its administrative remedies as a precursor to suit. For this court
to not weigh gaps [in the record] against plaintiff would be to encourage [taxpayers] to play a tight-lipped form of
cat and mouse with [IRS] information requests that makes no sense generally and particularly not in the confines of
the explicit and implicit directions of the Code.” 70 Fed. Cl. at 802 (internal quotations and citations omitted).
primarily in activities which accomplish one or more of such exempt purposes specified in §
501(c)(3).” 26 C.F.R. § 1.501(c)(3)-1. “[It] will not be so regarded if more than an insubstantial
part of its activities is not in furtherance of an exempt purpose.” Id. “It is well-settled that an
‘incidental non-exempt purpose will not disqualify an organization, but a single substantial nonexempt purpose or activity will destroy the exemption, regardless of the number or quality of
exempt purposes.” New Dynamics, 70 Fed. Cl. at 799 (citing, among others, Better Business
Bureau of Washington, D.C., Inc. v. United States, 326 U.S. 279, 283 (1945) (“This plainly
means that the presence of a single [non-exempt] purpose, if substantial in nature, will destroy
the exemption regardless of the number or importance of truly [non-exempt] purposes.”)).
Whether the FTM satisfies the operational test “is a question of fact to be resolved on the
basis of the administrative record,” New Dynamics, 70 Fed. Cl. at 800; accord Fund for the
Study of Economic Growth and Tax Reform v. I.R.S., 161 F.3d 755, 758-759 (D.C. Cir. 1998),
and “[u]nder the . . . test, the purpose toward which an organization’s activities are directed,
and not the nature of the activities themselves, is ultimately dispositive of the organization’s
right to be classified as a [§] 501(c)(3) organization exempt from tax under [§] 501(a),” B.S.W.
Group, 70 T.C. at 356-357. “[T]he critical inquiry is whether [the FTM]’s primary purpose for
engaging in its sole activity is an exempt purpose, or whether its primary purpose is the
nonexempt one of operating a commercial business producing net profits for [the FTM].” Id. at
357. “When the legality of an action depends not upon its surface manifestation but upon the
undisclosed motivation of the actor, similar acts can lead to diametrically opposite legal
consequences.” Presbyterian and Reformed Pub. Co., 743 F.2d at 155. Therefore, “[i]n cases
where an organization’s activities could be carried out for either exempt or nonexempt purposes,
courts must examine the manner in which those activities are carried out in order to determine
their true purpose.” Arlie, 283 F. Supp. 2d at 63 (emphasis in original); see Nonprofits’ Ins.
Alliance of California v. United States, 32 Fed. Cl. 277, 283 (1994) (citing Living Faith, Inc. v.
Comm’r, 950 F.2d 365, 372 (7th Cir. 1991)).
“In applying the operational test, courts have relied on what has come to be termed the
‘commerciality’ doctrine.” Arlie, 283 F. Supp. 2d at 63. The major factors courts have
considered in assessing commerciality are: “the particular manner in which an organization’s
activities are conducted, the commercial hue of those activities, and the existence and amount of
annual or accumulated profits.” B.S.W. Group, 70 T.C. at 358. Courts have further considered,
among other factors, “competition with for-profit commercial entities; [the] extent and degree of
below cost services provided; pricing policies; and [the] reasonableness of financial reserves,” as
well as “whether the organization uses commercial promotional methods (e.g., advertising) and
the extent to which the organization receives charitable donations.” Arlie, 283 F. Supp. 2d at 63;
accord Nonprofits’ Ins. Alliance, 32 Fed. Cl. at 283. Some of these factors lead the Court to
conclude that the FTM is shrouded with a “commercial hue.”
1. The FTM’s non-solicitation of charitable contributions
Although the FTM contends that the “source of an organization’s funding is not
determinative of whether it is entitled to tax-exempt status,” asserting instead that “it is the use of
the funds that is germane,” Pl.’s Mem. at 12, it seemingly misunderstands the IRS’s argument.
The IRS is not taking issue with the propriety of a separate business, trust, or fund being
managed collectively to finance charitable activities; rather, the IRS is pointing to the source of
the FTM’s funding for the purpose of demonstrating that it has relied solely on a fee structure
imposed on its members that is sufficient to recoup projected costs, instead of mitigating the
costs to beneficiaries by soliciting charitable contributions or implementing other creative
measures to amass funds. Gov’t’s Mem. at 20-21; see AR at 00334 (FTM’s admission that
“[c]haritable donations are not appropriate for trust administration”). Furthermore, even if the
Internal Revenue Code does not require the solicitation of charitable contributions as a condition
of tax-exempt status, courts have, nonetheless, consistently found an absence of such
solicitations as indicative, though not always dispositive, of a non-exempt purpose. B.S.W.
Group, 70 T.C. at 358; Arlie, 283 F. Supp. 2d at 63. And, while the FTM goes on to suggest that
some tax-exempt organizations are not even eligible to receive deductible contributions, making
public solicitation of contributions difficult, the FTM makes no attempt to show that such a
constraint hinders its ability to accept contributions. Pl.’s Reply at 9. The Court can only
wonder why a purported charitable organization seeking qualification for tax-exempt status
would not capitalize on the possible benefit of contributions that might offset operating costs for
2. The FTM’s profit margin is significant
The FTM urges the Court to find that “[w]hat matters . . . is not the volume of business or
the amount of ‘profits,’” but rather “[t]he organization’s charitable purpose and the absence of
personal profit.” Id. at 9. The Court certainly recognizes that the amount of profits will not
always be dispositive of the presence of a non-exempt purpose, but it is not convinced that profit
margins are of no consequence in this case. It is, in fact, one of several factors from which the
true purpose of an organization may be inferred, and when considering the “totality of the
circumstances,” certain factors, such as profits, may have added significance. Arlie, 283 F.
Supp. 2d at 65. As previously noted, it is difficult to escape the obvious correlation between
increasing profits and the founder’s increasing salary derived from these funds. And when this
fact is viewed in light of other factors, such as the absence of solicitation of charitable
contributions, the FTM’s profit margin begins to appear more a product of a growing
commercial enterprise than a tool for expanding the pooled investments that might enable
beneficiaries to reap a greater return or enjoy reduced fees.
3. The FTM’s services viewed as a commercial product
The IRS contends that the FTM “act[s] as an adjunct to [Mr.] Macy’s private elder law
practice, reaching only the ‘select group’ of the relatively affluent disabled to whom trustee
services might be provided profitably.” Gov’t’s Mem. at 26. Because the FTM’s response relies
only on the premise that no beneficiaries were referred to Mr. Macy’s practice by or from the
trust, the Court remains skeptical as to the possibility that the FTM’s services are being offered
as a commercial product by Mr. Macy’s firm and other local practitioners.
With respect to providing legal services to beneficiaries, the FTM states that
Mr. Macy does provide such services on occasion, exclusively in cases where his
attorney-client relationship was established prior to the formation of the trust
account for the individual. Such cases arise because Mr. Macy refers his own
disabled clients to the pooled trust if they meet the criteria of [the] FTM’s
charitable class. Mr. Macy has never become the attorney for any beneficiary as a
result of, or subsequent to, that person becoming a beneficiary of the pooled trust.
AR at 00222. While on first blush this argument may seem convincing, it is undercut by the
absence of any evidence regarding whether Mr. Macy’s legal practice is acquiring clients in the
first place due in part because of his connection to the FTM and the services it provides.
“Information regarding [the] FTM’s program is disseminated primarily through word-of-mouth
in the elder law communities” by healthcare and legal professionals. AR at 00079 ¶ 3. The
“manner” in which Mr. Macy and other members of the legal community go about connecting
eligible individuals with the FTM’s services suggests that those services are a commercial
product in disguise being touted by Mr. Macy and others who make referrals to the trust. Id.
The facts that Mr. Macy founded the program as a result of his law firm’s specialization in
advice regarding trusts, estate planning, guardianship, and probate matters for elderly clients, AR
at 00016, and his legal office remains listed as the FTM’s principal place of business, AR at
00001, only reinforce the idea that its services provide a marketable product to offer potential
clients. And though procurement of new clientele for Mr. Macy’s law practice may not be the
sole purpose of the FTM, the Court views this inevitable benefit as amounting to more than just
an incidental non-exempt purpose. That the FTM can easily be viewed as a selling point for
legal professionals imbues it, at least somewhat, with a “commercial hue.”
For the foregoing reasons, the Court finds that summary judgment must be granted in
favor of the United States because of the FTM’s inability to demonstrate that it is operated solely
for exempt purposes, and that its net earnings do not provide a private benefit to any individual.
SO ORDERED this 24th day of September, 2012. 5
REGGIE B. WALTON
United States District Judge
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
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