Reg. § 1.504-2 Certain transfers made to avoid section 504(a).
(a) Scope Under section , a transfer described in or of this section to an organization exempt from tax under section may result in loss of exemption by the transferee unless the Commissioner determines, under of this section, that the original transfer did not effect an avoidance of section . For purposes of this section, the term transfer includes any use by, or for the benefit of, the recipient of the transfer, but does not include any transfer made for adequate and full consideration.
(b) Transferor and transferee commonly controlled
(1) Loss of exemption A transfer is described in this if it is described in paragraphs (b)(2) through (b)(6). The transferee of a transfer described in this paragraph will cease to be exempt from tax under section , unless the provisions of of this section apply.
(2) Transferor organization A transfer is described in this only if it is from an organization that—
(i) Is or was described in section , but not in section , and
(ii) Is determined to be an “action” organization (as defined in or ), or is denied exemption from tax by reason of section and either or .
(3) Transferor and transferee commonly controlled A transfer is described in this only if, at the time of the transfer or at any time during the transferee's ten taxable years following the year in which the transfer was made, the transferee is controlled (directly or indirectly), as defined in of this section, by the same person or persons who control the transferor.
(4) Time of transfer A transfer is described in this only if the transfer is made—
(i) After the date that is 24 months before the earliest of the effective date of the determination under section that the transferor is not exempt, the effective date of the Commissioner's determination that the transferor is an “action” organization (as defined in or ), or the date on which the Commissioner proposes to treat it as no longer described in section , and
(ii) Before the transferor again is recognized as an organization described in section .
(5) Transferee A transfer is described in this only if the transferee is exempt from tax under section but the transferee is neither—
(i) An organization described in section , nor
(ii) An organization described in section to which the transferor contributes as an employer.
(6) Amount of transfer A transfer is described in this only if the amount of the transfer exceeds the lesser of 30 percent of the net fair market value of the transferor's assets or 50 percent of the net fair market value of the transferee's assets, computed immediately before the transfer. For purposes of this —
(i) The amount of a transfer by a transferor is the sum of the amounts transferred to any number of transferees in any number of transfers, all of which are described in through of this section, and the time of the transfer is the time of the first transfer so taken into account; and
(ii) The amount of a transfer to a transferee is the sum of the amounts transferred by a transferor to the transferee in any number of transfers, all of which are described in through of this section, and the time of the transfer is the time of the first transfer so taken into account.
(c) Other transfers
(1) Transfers included A transfer is described in this if it would be described in of this section except that either—
(i) The amount of the transfer is less than the amount determined in of this section, or
(ii) The transferor and transferee are not commonly controlled as described in of this section, or
(iii) The transferee is an organization described in sections and .
(2) Loss of exemption The transferee of a transfer described in this will cease to be exempt under section if the Commissioner determines on all the facts and circumstances that the transfer effected an avoidance of section . In determining whether a transfer effected an avoidance of section , the Commissioner may consider whether the transferee engages, or has engaged, in attempts to influence legislation and may also consider any factors enumerated in of this section.
(d) Date of loss of exempt status A transferee of a transfer described in , , or of this section will cease to be exempt from tax under section on the date that all requirements of paragraph (b), (c)(1)(ii), or (c)(1)(iii) (other than the determination by the Commissioner) are satisfied. A transferee of a transfer described in of this section will cease to be exempt from tax under section on the date of the last transfer preceding notification of the transferee that the Commissioner proposes to treat the transferee as other than an exempt organization.
(e) Transfers not in avoidance of section 504(a) Notwithstanding of this section, if, based on all the facts and circumstances, the Commissioner determines that a transfer described in paragraph (b) did not effect an avoidance of section , the transferee will not be denied exemption from tax by reason of section and this section. In making the determination called for in the preceding sentence, the Commissioner may consider all relevant factors including:
(1) Whether enforceable and effective conditions on the transfer preclude use of any of the transferred assets for any purpose that, if it were a substantial part of an organization's activities, would be inconsistent with exemption as an organization described in section ;
(2) In the absence of conditions described in of this section, whether the transferred assets are used exclusively for purposes that are consistent with the transferor's exemption as an organization described in section ;
(3) Whether the assets transferred would be describe in (-2(c)(3) before, as well as after, the transfer if both the transferor and transferee were private foundations;
(4) Whether and to what extent the transfer would satisfy the provisions of and if the transferor were a private foundation;
(5) Whether all of the transferred assets have been expended during a period when the transferee was not controlled (directly or indirectly) by the same person or persons who controlled the transferor; and
(6) Whether the entire amount of the transferred assets were in turn transferred, before the close of the transferee's taxable year following the taxable year in which the transferred assets were received, to one or more organizations described in section none of which are controlled (directly or indirectly) by the same persons who control either the original transferor or transferee.
(f) Control For purposes of section and the regulations thereunder—
(1) The transferor will be presumed to control any organization with which it is affiliated within the meaning of , or would be if both organizations were described in section , and
(2) The transferee will be treated as controlled (directly of indirectly) by the same person or persons who control the transferor if the transferee would be treated as controlled under , for which purpose the transferor shall be treated as a private foundation.
[T.D. 8308, 55 FR 35592, Aug. 31, 1990]