PLR 201702041 Organization Operating Restaurant Denied Exemption
Dear * * *:
* * *
We considered your application for recognition of exemption from federal
income tax under Section 501(a) of the Internal Revenue Code (Code). Based
on the information provided, we determined that you don't qualify
for exemption under Section 501(c)(3) of the Code. This letter explains
the basis for our conclusion. Please keep it for your records.
Do you qualify for exemption under section 501(c)(3) of the Code? No,
for the reasons stated below.
You formed as a nonprofit unincorporated association. Your organizing
document states that your purpose is to, "Become West M's first
public, 501(c)(3) Charitable Organization that re-innovates charity by
helping an area where the unemployment rate is higher than the State and
National averages through lessening Government burdens by providing financial
assistance to volunteers, helping local vendors by using their products,
helping Communities with the battle of obesity by serving locally grown
ingredients in healthy, freshly prepared meals, helping others in need
by donating to similar charities with known community service programs,
helping domestic violence victims transition into world-impacting survivors
through L, and helping end domestic violence by educating the public to
the ugly truths about the #1 under-reported crime in the world, how to
end it, and who to contact for help ." Your goals include teaching
students and the public that violence is a choice and providing victims
with the opportunity to safely transition to survivors through the L.
You plan to operate several programs, the first of which is the L where
you will assist victims of domestic violence with transitional tools.
You will begin this program once enough funds have been raised. Your second
program is the R where you educate students about teen dating and domestic
violence and provide resources to those who need help. You also have an
S where you educate and provide resources to the general public.
Your previous work in the service industry showed you that people want
to be rewarded for spending money so you came up with a concept of, "rewarding
'customers' with tax deductible receipts in areas where they are
already spending the money as a 'thank you' for helping the foundation
reach its goals of ending domestic violence and re-innovating charity
through its N." Your N will be your primary source of funding and
consists of the operation of two restaurants, P and Q. You have signed
five year lease agreements for each of these locations and they will be
"farm to table" public eateries. Through these restaurants,
you will purchase goods from local vendors, serve locally grown ingredients,
and compensate "volunteers" for the work they perform at the
restaurants. You state that you will reward "customers" with
tax deductible receipts for spending money on freshly prepared meals.
Your financial projections show that approximately Y percent of your revenue
will come from the restaurants and approximately Z percent of your expenses
will be for salaries and wages. X percent of your monthly revenue will
be donated to other organizations that are dedicated to helping others
in need. In the future, you hope to expand your fundraising activities
to include two additional N, one in the wedding industry and another in
the entertainment industry.
Other fundraising activities you conduct include accepting donations on
your website, holding a 5K run/walk, holding raffles for prizes, and soliciting
donations via mail, email, and in person.
There are currently four members of your Board of Directors. The two founders,
T and U, are married and serve as Co-Presidents. They have a combined
experience of 46 years in the service and hospitality industries. The
two remaining board members, V and W, are also married. Once the N are
open to the public, T and U will dedicate all of their time and efforts
to operating the programs. V and W will also work full time for you once
your finances are able to provide reasonable compensation for them.
Section 501(c)(3) of the Internal Revenue Code provides, in part, for
the exemption from federal income tax of organizations organized and operated
exclusively for charitable, religious or educational purposes, no part
of the net earnings of which inures to the benefit of any private shareholder
Section 1.501(c)(3)-1(a)(1) of the Income Tax Regulations states that,
in order to be exempt as an organization described in section 501(c)(3)
of the Code, an organization must be both organized and operated exclusively
for one or more of the purposes specified in such section. If an organization
fails to meet either the organizational test or the operational test,
it is not exempt.
Section 1.501(c)(3)-1(c)(1) of the Regulations provides that an organization
will be regarded as "operated exclusively" of one or more exempt
purposes only if it engages primarily in activities which accomplish one
or more of such exempt purposes specified in section 501(c)(3) of the
Code. An organization will not be so regarded if more than an insubstantial
part of its activities is not in furtherance of an exempt purpose.
Section 1.501(c)(3)-1(d)(2) of the Regulations provides that the term
"charitable" is used in section 501(c)(3) of the Code in its
generally accepted legal sense and includes relief of the poor and distressed
or of the underprivileged as well as the advancement of education.
Section 1.501(c)(3)-1(d)(3) of the Regulations provides that the term
"educational" refers to the instruction or training of the individual
for the purpose of improving or developing his capabilities, or the instruction
of the public on subjects useful to the individual and beneficial to the
Section 1.501(c)(3)-1(e)(1) of the Regulations provides that an organization
may meet the requirements of section 501(c)(3) although it operates a
trade or business as a substantial part of its activities, if the operation
of such trade or business is in furtherance of the organization's
exempt purpose or purposes and if the organization is not organized or
operated for the primary purposes of carrying on an unrelated trade or business.
In Rev. Rul. 69-177, 1969-1 CB. 150, the Service held that an organization,
wholly owned by a tax exempt college, that manufactures and sells wood
products primarily to employ students of the college to enable them to
continue their education does not qualify for exemption under section
501(c)(3) of the Code.
In Rev. Rul. 71-581, 1971-2 CB. 236, the Service held that the operation
of a separately incorporated thrift shop to raise funds for a group of
organizations exempt under section 501(c)(3) of the Code qualifies for
exemption under section 501(c)(3) of the Code. Substantially all of the
goods in the thrift shop had been donated and more than half of the work
was performed without compensation.
In Rev. Rul. 73-127, 1973-1 CB. 221, the Service held that a nonprofit
organization that operates a cut-price retail grocery outlet and allocates
a small portion of its earnings to provide on-the-job training the hard-core
unemployed does not qualify for exemption from income tax.
In Rev. Rul. 76-94, 1976-1 CB. 171, the Service held that an exempt organization's
operation of a retail grocery store as part of its therapeutic program
for emotionally disturbed adolescents, almost fully staffed by the adolescents,
and on a scale no larger than was reasonably necessary for the performance
of the organization's exempt functions, was not unrelated trade or business.
In Better Business Bureau of Washington, D.C., Inc. v. United States,
326 U.S. 279 (1945), the Supreme Court held that the presence of a single
non-exempt purpose, if substantial in nature, will destroy a claim for
exemption regardless of the number or importance of truly exempt purposes.
In Nelson v. Commissioner, 30 TC. 1151 (1958), the court held that an
applicant for tax exempt status under section 501(c)(3) has the burden
of showing it "comes squarely within the terms of the laws conferring
the benefit sought."
In American Institute for Economic Research v. United States, 302 F.2d
934 (Ct. Cl. 1962), the Court considered the status of an organization
that provided analysis of securities and industries and of the economic
climate in general. It sold subscriptions to various periodicals and services
providing advice for purchases of individual securities. The Court concluded
that the totality of the organization's activities, which included
the sale of many publications as well as the sale of advice for a fee
to individuals, was more indicative of a business than that of an educational
organization. The Court held that the organization had a significant non-exempt
commercial purpose that was not incidental to the educational purpose
and that the organization was not entitled to be regarded as exempt.
In Living Faith, Inc. v. Commissioner, 950 F.2d 365 (7th Cir. 1991), the
Court of Appeals upheld a Tax Court decision, T.C. Memo. 1990-484, that
an organization operating restaurants and health food stores in a manner
consistent with the doctrines of the Seventh Day Adventist Church does
not qualify under section 501(c)(3) of the Code. The court found substantial
evidence to support a conclusion that the organization's activities
furthered a substantial nonexempt purpose, including:
a. The organization's operations were presumptively commercial;
b. The organization competed directly with other restaurants and food stores;
c. The organization used profit-making pricing formulas common in the
retail food business;
d. The organization engaged in a substantial amount of advertising;
e. The organization's hours of operation were competitive with other
commercial enterprises; and
f. The organization lacked plans to solicit donations.
APPLICATION OF LAW
Your L, R, and S consist of educating individuals about domestic violence
and assisting victims of domestic violence. L, R, and S all serve charitable
and educational purposes and fall under sections 1.501(c)(3)-1(d)(2) and
1.501(c)(3)-1(d)(3) of the Regulations. However, your N, which are your
primary activities, consist of operating restaurants to raise funds and
are not charitable or educational. For instance, compensating individuals,
whom you described as volunteers, for the work they perform preparing
and serving meals is not considered a "charitable" activity.
Therefore, you are not described in section 1.501(c)(3)-1(a)(1) of the
Regulations because you are not both organized and operated exclusively
for charitable, educational, or religious purposes as specified in section
501(c)(3) of the Code.
You are not described in section 1.501(c)(3)-1(c)(1) of the Regulations
because more than an insubstantial part of your activities, specifically
the operation of two restaurants, is devoted to non-exempt purposes. Similarly,
the operation of the restaurants is your primary activity and it is unrelated
to, and not in furtherance of, your other charitable and educational activities.
You are similar to the organization in Rev. Rul. 69-177 that operated
a business to obtain funds for scholarship purposes to enable individuals
to continue their education. You are also operating businesses, your restaurants,
in order to raise funds for your scholarship program. Engaging in a trade
or business to obtain funds for the L is not an exempt activity merely
because the profits will be used for this program.
You are also similar to the organization in Rev. Rul. 73-127. Like the
organization in Rev. Rul. 73-127, several of your activities such as educating
individuals about domestic violence and assisting victims of domestic
violence are charitable and educational. However, you also have activities,
the operation of your restaurants, that are commercial in nature and do
not fulfill a charitable or educational purpose. Your operation of the
restaurants does not fall under section 501(c)(3) of the Code.
You are not similar to the organization ruled in Rev. Rul. 76-94 because
the operation of your restaurants is your main function and your planned
educational and charitable programs are secondary to your total activities.
You are similar to the organizations described in the American Institute
for Economic Research v. United States and Living Faith, Inc. v. Commissioner.
You plan to operate two restaurants in competition with other for-profit
restaurants. Your restaurants are viewed as commercial. Your sources of
revenues are mainly from restaurant sales and your expenses are mainly
for the restaurant operation. Taken in totality, your restaurants are
a significant non-exempt commercial activity that is not incidental.
As held in Better Business Bureau of Washington, D.C., Inc. v. United
States, 326 U.S. 279 (1945), a single non-exempt purpose, if substantial,
will preclude tax exemption under section 501(c)(3) of the Code. The operation
of your restaurants, a substantial part of your activities, is a non-exempt
purpose; therefore, you are not operating exclusively for an exempt purpose
as described in Section 501(c)(3) Code.
According to the findings in Nelson v. Commissioner, you have the burden
of proving that you satisfy the requirements of the particular exemption
statute. Whether you meet this requirement is a statement of fact. The
facts indicate that your primary activity is the operation of restaurants
that are similar to other for-profit restaurants. Thus, you do not qualify
for exemption under Section 501(c)(3) Code.
You state your activities are charitable because it is your goal to help
the less fortunate. You financially compensate volunteers for their services
to help maintain your charitable status while lessening the population's
need for government assistance. You also supply resources to those in
need. You will develop qualified teams to teach students and the public
about violence prevention. You will also develop age appropriate material
for younger children and provide resources to victims.
SERVICE RESPONSE TO APPLICANT'S POSITION
Although several of your activities consist of educating students and
the public as well as providing resources to victims, which are charitable
and educational in nature, your main activity consists of operating two
restaurants, which are in competition with other for-profit restaurants
in the area. Your restaurants are commercial in nature and not described
under Section 1.501(c)(3)-1(a)(1) of the Regulations. Additionally, compensating
individuals, whom you describe as volunteers, for the work they perform
in the restaurants is not a charitable activity.
You state that your community development programs fulfill the requirements
of section 1.501(c)(3)-1(d)(2), section 1.501(c)(3)-1(d)(3) and section
1.501(c)(3)-1(c)(1). You state that your charitable mission is different
than the findings in Living Faith, Inc. v. Commissioner because your operations
are to primarily help the disadvantaged and educate the public. You cannot
compete with commercial restaurants due to the fact that your hours of
operation are based upon volunteer schedules. You must use a type of profit
making pricing formula similar to those in the retail food business to
ensure that expenses are covered and disadvantaged employees have a paycheck.
Additionally, your advertising is solely for fundraising purposes to solicit
donations and you solicit for donations at your fundraising locations/resource centers.
Your fundraising locations/resource centers, P and Q, provide the public
with opportunities to donate to charities and provide resources regarding
how to recognize the signs of dating abuse and family violence and who
to contact for help. At your N, P, and Q you have monitors that show PowerPoint
presentations that solicit donations and provide electronic resources
and foundation information. You also have televisions that display local,
national, and global resources and information about resources for help
is located in the public restrooms. There is also free WIFI and I-Pad
use as well as free cell phone charging. Your N, P and Q, also provide
the recipients of L with employment. Disadvantaged "volunteers"
are employed at P and Q and your sponsors are advertised on the back of
their uniforms. You submitted a menu for Q which shows a variety of breakfast
and lunch items and lists the hours for Q as Monday-Friday from 7a.m.-8p.m.
and Saturday 8a.m.-4p.m.
You added several new activities:
- B: You collect gently used and new clothing and basic necessities at your
fundraising locations/resource centers for those in need at local domestic
violence and homeless shelters.
- C: You teach youth the aspects of growing, producing, and maintaining sustainable
food systems and participants can explore career possibilities in various
aspects of food preparation. Eligible participants can also become employees
at your fundraising locations/resource centers. The produce grown under
this program is provided to the public for donations for meals at your
fundraising locations/resource centers.
- D: At your fundraising locations/resource centers you provide healthy food
produced by local farmers and C to individuals who want a home-cooked
meal in a restaurant type environment.
- F: This program is currently under development and will be a 5 week summer
camp program for at risk children of family violence, sexual abuse, and
neglect. It will be funded from donations and from your fundraising locations/resource centers.
SERVICE RESPONSE TO APPLICANT'S PROTEST
Several of your programs such as B, F, L, R, and S are charitable and
educational and meet the requirements of section 1.501(c)(3)-1(d)(2) and
section 1.501(c)(3)-1(d)(3) of the Regulations. C has an educational component,
but also benefits P and Q by providing produce that is used for meals.
Additionally, there is education provided at P and Q through the televisions,
monitors, and signs, but it is insubstantial compared to the operation
of the restaurants.
You do not meet the requirements of section 1.501(c)(3)-1(c)(1) of the
Regulations because you are not operated exclusively of one or more exempt
purposes. You do not primarily engage in activities which accomplish one
or more exempt purposes specified in section 501(c)(3) of the Code. Your
main activity, the operation of your N, P and Q, is commercial in nature
and is not in furtherance of an exempt purpose. You are open daily during
daytime hours and the restaurant space can be reserved for meetings on
Sundays. Your hours of operation are competitive with other commercial
enterprises and you therefore compete directly with other restaurants.
The menu submitted for Q is a typical menu with a listing of the food
you serve with the corresponding price. Meals range from j dollars with
additional charges for side items and additions. Aside from the listing
and pricing of meals, the menu states that you are a fundraising location
for the G and that 100% of the net proceeds are donated to L for survivors
of family and violence. Operating restaurants to raise funds is not a
The educational and charitable activities your organization conducts make
up an insubstantial part of your overall activities. Your primary activity
is the daily operation of the restaurants. Engaging in a trade or business
to obtain funds for your other educational and charitable activities is
not an exempt activity merely because the profits will be used for those
programs. Additionally, compensating individuals, whom you described as
volunteers, for the work they perform preparing and serving meals is not
considered a charitable activity. Your activities are commercial in nature
and not described under section 1.501(c)(3)-1(a)(1) of the Regulations.
APPLICANT'S SECOND PROTEST
You state that as of K the only programs that you will be conducting are
those mentioned in your protest letter. All others were vetoed by your
governing board. You will H, a fundraising and resource center. You will
also have the L which now consists of allowing children of family violence,
sexual assault, and neglect the opportunity to attend F for free. The
children will then be eligible to apply for college grants from you in
their senior year of high school that will be renewable based on grades
and continued education. For adults, you will be offering much needed
employment to survivors of family violence. You will not be branching
out into the wedding or entertainment industries for monetary donations
because you were unable to acquire the historic location.
You explain that the first stages of seeking help from family violence
are the most dangerous. When you put take out menus from H into the hands
of the public, M's 24 hour crisis hotline number is printed on them
so when a victim is ready he/she can seek the help needed. You reinvent
charity and combine providing on the job training to the disadvantaged
with the desire to help end violence in your community. You offer reasonably
priced meals prepared by survivors of abuse.
You compare yourself to E whose activities include thrift shops and argue
that the only difference between you is donated food being prepared and
served by the disadvantaged compared to donated used items refurbished
and sold by the disadvantaged in order to fundraise and support each charity.
You state, "Both charities "compete" with non-charitable/commercial
businesses. To help raise financial support for both charities, each have
set "hours of operation" and set, individual, itemized donation
"pricing" that helps provide a "hand-up" in the form
of financial resources to the disadvantaged earning their living and improving
their qualities of life instead of being forced to beg for a "hand-out"
and depend on Government Welfare for their livelihoods." You state
that you mimic E's charitable mission of providing employment to the
disadvantaged. You indicate that you both provide the disadvantaged with
opportunities for employment and extended education that improves the
quality of life and you both collect new and gently used items. You are
educational because you provide information about family violence and
dating abuse to the public. You are different from E because you have
your charitable program B which gives to those in need who do not have
the money to replace the necessities left behind or for food. You are
also different because you provide the public with information and technology
and you offer healthy meals prepared by survivors of family violence who
desire to better their community by breaking the cycle of abuse. The money
from meals purchased provides support for C, a charitable program for
underserved public schools that promotes extended education and offers
dating violence resources to students. Proceeds are also used to help
a lunch ministry for disadvantaged children.
SERVICE RESPONSE TO APPLICANT'S SECOND PROTEST
You compared yourself to E, a thrift shop. However, you are not like the
organization in Rev. Rul. 71-581 that operates a thrift shop. Unlike the
organization in Rev. Rul. 71-581, your activities at P and Q are conducted
by compensated individuals, not volunteers. In fact, approximately Z%
of your revenue will go toward salaries and wages. Additionally, all though
you mention donated food in your protest, you previously stated that P
and Q would be "farm to table" public eateries and you would
purchase goods from local vendors for the restaurants. Therefore, unlike
the organization in Rev. Rul. 71-581, you are not selling donated items.
You are purchasing items from local vendors for the meals that you sell
to the public.
You are also like the organization in Living Faith, Inc. v. Commissioner.
Your restaurants P and Q serve a substantial nonexempt purpose. Although
you do use the restaurants to provide some educational and charitable
items to the public, the main activity of the restaurants is providing
food to the public for a fee. P and Q are open daily and are in direct
competition with other restaurants. Although you state you will provide
a meal for free if someone cannot afford it, your normal prices, or suggested
donations for the food items, are in line with other retail food businesses.
Your sources of revenues are mainly from restaurant sales and your expenses
are mainly for the restaurant operations. Your activities are commercial
in nature and not described under section 1.501(c)(3)-1(a)(1) of the Regulations.
Based on the facts and circumstances presented, we conclude that you do
not qualify for recognition of exemption from federal income tax as an
organization described in Section 501(c)(3) of the Code. Your restaurant
activities are indistinguishable from similar activities of an ordinary
commercial enterprise. Accordingly, you must file federal tax returns
and contributions to you are not deductible under section 170 of the Code.
IF YOU DON'T AGREE
You have a right to file a protest if you don't agree with our proposed
adverse determination. To do so, you must send a statement to us within
30 days of the date of this letter. The statement must include:
- Your name, address, employer identification number (EIN), and a daytime
- A copy of this letter highlighting the findings you disagree with
- An explanation of why you disagree, including any supporting documents
- The law or authority, if any, you are relying on
- The signature of an officer, director, trustee, or other official who is
authorized to sign for the organization, or your authorized representative
One of the following declarations:
For an officer, director, trustee, or other official who is authorized
to sign for the organization:
Under penalties of perjury, I declare that I examined this protest statement,
including accompanying documents, and to the best of my knowledge and
belief, the statement contains all relevant facts and such facts are true,
correct, and complete.
For authorized representatives:
Under penalties of perjury, I declare that I prepared this protest statement,
including accompanying documents, and to the best of my knowledge and
belief, the statement contains all relevant facts and such facts are true,
correct, and complete.
Your representative (attorney, certified public accountant, or other individual
enrolled to practice before the IRS) must file a Form 2848, Power of Attorney
and Declaration of Representative, with us if he or she hasn't already
done so. You can find more information about representation in Publication
947, Practice Before the IRS and Power of Attorney.
We'll review your protest statement and decide if you provided a basis
for us to reconsider our determination. If so, we'll continue to process
your case considering the information you provided. If you haven't
provided a basis for reconsideration, we'll forward your case to the
Office of Appeals and notify you. You can find more information about
the role of the Appeals Office in Publication 892, How to Appeal an IRS
Decision on Tax-Exempt Status.
If you don't file a protest within 30 days, you can't seek a declaratory
judgment in court at a later date because the law requires that you use
the IRS administrative process first (Section 7428(b)(2) of the Code).
WHERE TO SEND YOUR PROTEST
Please send your protest statement, Form 2848, if needed, and any supporting
documents to the applicable address:
Internal Revenue Service
EO Determinations Quality Assurance
P.O. Box 2508
Cincinnati, OH 45201
Street address for delivery service:
Internal Revenue Service
EO Determinations Quality Assurance
550 Main Street, Room 7-008
Cincinnati, OH 45202
You can also fax your statement and supporting documents to the fax number
listed at the top of this letter. If you fax your statement, please contact
the person listed at the top of this letter to confirm that he or she
IF YOU AGREE
If you agree with our proposed adverse determination, you don't need
to do anything. If we don't hear from you within 30 days, we'll
issue a final adverse determination letter. That letter will provide information
on your income tax filing requirements.
You can find all forms and publications mentioned in this letter on our
website at www.irs.gov/formspubs. If you have questions, you can contact
the person listed at the top of this letter.
Jeffrey I. Cooper
Director, Exempt Organizations
Rulings and Agreements