Bruce R. Hopkins - The Law of Tax-Exempt Organizations, 2021 Cumulative Supplement

Likewise, an organization was denied recognition of exemption as a social welfare organization because its activities consisted of provision of maintenance services to its members, which were businesses owning lots in a commercial shopping property, in exchange for assessments. 54.1

p. 336. Insert following carryover paragraph, before heading:

An organization was formed to operate a “holistic medicine establishment” selling medicinal marijuana products to patients with prescriptions from licensed physicians; it conducted a storefront business, being licensed by a state as a retailer of recreational‐use cannabis. The IRS denied recognition of exemption as a social welfare organization to this entity, on the ground that its primary activity was carrying on a business with the public in a manner similar to for‐profit organizations. 113.1 The IRS applied the commerciality doctrine in reaching this conclusion, finding that the organization “use[s] promotional policies to enhance sales,” “advertises goods and services,” sets margins at a level that “enables [it] to replace merchandise inventory,” and “maintain[s] a retail outlet with hours of operation that are competitive with other retail establishments.” 113.2 Notably, the IRS did not deploy the arguments that it uses in the charitable setting: namely, that the activity is illegal under federal law and is contrary to federal public policy. 113.3

1 11.1 E.g., Priv. Ltr. Rul. 202015036.

2 54.1 Priv. Ltr. Rul. 201907013.

3 113.1 Priv. Ltr. Rul. 201941028.

4 113.2 See § 4.9(g).

5 113.3 See §§ 6.2(a), 6.3(i).

§ 14.1 Concept of Business League (a) General Principles (g) Certification Programs

§ 14.2 Disqualifying Activities(a) Line‐of‐Business Requirement (c) Performance of Particular Services (d) Private Inurement (d‐1) Private Benefit

p. 338, note 7. Insert following existing text:

Occasionally, a tax‐exempt organization, such as a charitable entity, will have its operations evolve from activities originally established into those of an exempt business league (e.g., Priv. Ltr. Rul. 201907011).

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It is the view of the IRS, however, that certification programs are inconsistent with tax‐exempt status for charitable, educational, and scientific organizations, due to the extent of private benefit conferred on the certified individuals. 113

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For example, the IRS revoked the tax‐exempt status of a public charity that evolved to the point that its primary functions were the certification of travel professionals; the agency rejected the argument that an eco‐certification program was charitable in nature. 113.1 Likewise, a public charity lost its exemption because, due to a merger, it undertook a substantial new program of certifying individuals in a health care field. 113.2

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an organization providing a forum for the exchange of information to assist users and potential users of a software application; 133.1 and an organization that is an association of franchise owners. 133.2

p. 351, note 133. Delete text and insert:

E.g., Priv. Ltr. Rul. 201721020. This type of referral group cannot qualify as a tax‐exempt social welfare organization (see Chapter 13) (e.g., Priv. Ltr. Rul. 202009025).

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; an organization with the primary activity of negotiating with vendors to secure improved supply pricing for its members to enable them to compete with large national franchises; 191.1 an organization offering early‐stage companies investment opportunities for its members; 191.2 an organization operating a scheduling service for its member food truck operaters; 191.3 an organization formed to increase the efficiency and performance of its member networks; 191.4 and an association of bridal salons where its primary activity was advertising. 191

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Application of the particular services rule by the IRS has recently been nicely illustrated in connection with the activities of associations of umpires and referees. Although these organizations provide education and training for their membership, their primary function is to schedule, assign, and pay their members for their officiating services. The IRS rejects these organization's efforts to be recognized as tax‐exempt business leagues on the ground that they are providing particular services to their members by arranging employment opportunities for them, resulting in impermissible private benefit. The IRS has so ruled in cases involving baseball umpires, 199.1 tennis umpires, 199.2 soccer referees, 199.3 and volleyball officials. 199.4

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p. 359, note 216. Delete 200508016 and insert 200505024.

The IRS occasionally invokes the private benefit doctrine 217.1 when denying recognition of tax exemption to an organization seeking to be an exempt business league. This doctrine is more likely to be applied than the private inurement doctrine because most of these organizations' memberships lack the status of insiders. 217.2 Use of the private benefit doctrine is often made in tandem with application of the particular services rule. 217.3

For example, an organization that pursued tax exemption as a business league was operated primarily to provide cooperative services for its members, acting as a bargaining agent to negotiate for better terms and conditions of doing business with vendors, suppliers, and service providers, with whom its members do business. In addition to invoking the particular services rule, the IRS held that this entity was providing economic benefit to its members. 217.4

1 113 See §§ 7.8, text accompanied by notes 321.1–321.5; 20.13(a).

2 113.1 Priv. Ltr. Rul. 201843016.

3 113.2 Priv. Ltr. Rul. 201906010.

4 133.1 Priv. Ltr. Rul. 202013016.

5 133.2 Priv. Ltr. Rul. 202017028.

6 191.1 Priv. Ltr. Rul. 201907007.

7 191.2 Priv. Ltr. Rul. 201944014.

8 191.3 Priv. Ltr. Rul. 202015022.

9 191.4 Priv. Ltr. Rul. 202015025.

10 191 Priv. Ltr. Rul. 202034010.

11 199.1 E.g., Priv. Ltr. Rul. 201511024.

12 199.2 Priv. Ltr. Rul. 201820020.

13 199.3 Priv. Ltr. Rul. 201924019.

14 199.4 Priv. Ltr. Rul. 201931010.

15 217.1 See § 20.13(a).

16 217.2 See § 20.3.

17 217.3 See § 14.2(c)(i), (ii).

18 217.4 Priv. Ltr. Rul. 201931013.

§ 15.1 Social Clubs in General(b) Club Functions

§ 15.4 Exceptions to Limitations

§ 15.5 Taxation of Social Clubs