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PLR 202243015

Social Clubs

Official textIRS Written Determinations (PLR · TAM · CCA)irs.gov
Summarize

# Issues

Department of the Treasury - Internal Revenue Service
Explanations of Items
Tax Identification Number (last 4 digits) Schedule number or exhibit
Year/Period ended
1) Should . ( ) an organization described in IRC § 501 (c)(7) be revoked for exceeding investment/nonmember income limitation for all years beginning on or after ?
2) Can the organization utilize the net operating loss (NOL) from rental activity to offset investment income?

# Facts

The . ( ) was incorporated in the state of . The corporate address is , The organization was issued a determination letter dated granting exemption under the Internal Revenue Code of as an organization described in section 501 (c)(7). The organization is a membership organization founded to collect, preserve and disseminate genealogical and historic information relating to the origin and spread of the in Membership in the is open to any person whose ancestor or whose was , or alternate spellings of the name. The conducts the following activities, holds reunions in -numbered years in , issues a quarterly newsletter and other publications, and sponsors tours of interest to its members. The organization has an active web site, . The organization through its website, sells its products, solicits new membership, allows current members to pay dues, informs members of upcoming events and provides access to its newsletter and publications. In the year of , the organization sponsored a member tour, The at a cost of$ . The organization program service revenue was $ and the membership dues was $ The organizations primary sources of revenue are program service revenues, membership fees, investment income and The organization received investment income from its investments. The organization received rental income from its located at is the of . The is to stated that the is not a member of the organization.
All income and related deductions of the were reported on form . The organization has reported a net operating loss (NOL) on Form on the rental activity. The organization offset its losses from the activity against the earnings from its investments and reported no unrelated business taxable income and no income tax.
Per the organization organization reported $ Form , the organization reports total revenues of$ . The as program service revenues, $ as membership dues and Page _1 _ Form886-A Name of taxpayer assessments, $ revenue,$ Department of the Treaswy - Internal Revenue Service Explanations of Items as sale of merchandise, $ as rental income and $ Tax Identification Number (last 4 digits) as fund raising income,$ as investment income.
For the year of , the organization reported investment income on form $ , the organization reported $ as investment income on form Schedule number or exhibit Year/Period ended as other in the amount of As per initial interview with the organizations , stated that the correct amount of investment income was $ and the amount reported on Form of $ was in error. The investment income was underreported on form for in the amount of $ and underreported on form for in the amount of$ The investment income and rental income represents % of the organization's total revenue for As per Form and Form , the organization has reported the following amounts of investment/nonmember income in and Investment/Nonmember Income The has exceeded the % investment income/Nonmember limitation for out of the identified years. has also exceeded the nonmember limitation.
Section 501(c)(7) of the Internal Revenue Code (the Code) provides for the exemption from federal income tax for clubs organized for pleasure, recreation, and other nonprofitable purposes, substantially all of the activities of which are for such purposes and no part of the net earnings of which inures to the benefit of any private shareholder.
Treasury Regulation Section 1.501(c)(7)-1(a) states that exemption provided by Section 501 {a) of the Code for organizations described in Section 501 (c)(7) of the Code applies only to clubs which are organized and operated exclusively for pleasure, recreation, and other nonprofitable purposes, but does not apply to any club if any part of its net earnings inure to the benefit of any private shareholder. In general, this exemption extends to social and recreation clubs which are supported solely by membership fees, dues, and assessments. However, a club otherwise entitled Page-2_ Form 886-A {Rev. 5-2017) Form 886-A
Name of taxpayer
Department of the Treasury - Internal Revenue Service
Explanations of Items
Tax Identification Number (last 4 digits) Schedule number or exhibit Year/Period ended to exemption will not be disqualified because it raises revenue from members by club facilities or in connection with club activities.
Treasury Regulation Section 1.501(c)(7)-1(b) states that a club which engages in business, such as making its social and recreational facilities available to the general public or by selling real estate, timber, or other products, is not organized and operated exclusively for pleasure, recreation, and other nonprofitable purposes, and is not exempt under Section 501 (a) of the Code.
Revenue Ruling 58-589, 1958-2 C.B. 266, held that a social club must establish (1) that it is a club both organized and operated exclusively for pleasure, recreation and other nonprofitable purposes.
Revenue Ruling 66-149, 1966-1 C.B. 146, held that a social club is not exempt from Federal income tax as an organization described in Section 501 (c)(7) of the Internal Revenue Code of 1954 where it regularly derives a substantial part of its income from nonmember sources such as, for example, dividends and interest on investments which it owns.
Public Law 94-568, 1976-2 C.B. 896, provides that a social club may receive up to 35 percent of its gross receipts, including investment income, from sources outside its membership without losing exemption. Within this 35 percent amount, not more than 15 percent of the gross receipts should be derived from the use of a social club's facilities or services by the general public. This means that a club exempt from taxation described in Section 501 (c)(7) is to be permitted to receive up to 35 percent of its gross receipts from a combination of investment income and receipts from non-members so long as the latter do not represent more than 15 percent of total receipts.
Revenue. Procedure. 71-17, 1971 WL 26186, 1971-1 C.B. 683 sets forth guidelines for determining the effect gross receipts derived from use of a social club's facilities by the general public have on the club's exemption from federal income tax under section 501 (c)(7) of the Code.
The club must maintain books and records of each such use and the amount derived therefrom.
This requirement applies even though the member pays initially for such use.
Pittsburgh Press Club v. U.S., 536 F.2d 572 (1976); 579 F.2d 751 (1978); and 615 F.2d 600
(1980), the court found that a substantial portion of the club's total gross receipts was from nonmember use of club facilities (determined to be between 11-17% of gross income). This indicated to the court that the club was engaged in business with the general public. Other factors noted by the court to consider in addition to the level of nonmember income include the purposes for which the club's facilities were made available to nonmember groups, the frequency of use of the club facilities by nonmembers, and the amount of net profits derived from the nonmember income.
U.S. v. Fort Worth Club of Fort Worth, Tex., 345 F.2d 52, (a social clubs'] exemption stands on a different footing from that of charitable and educational institutions. There is no basis in the Form 886-A
Name of taxpayer
Department of the Treasury - Internal Revenue Service
Explanations of Items
Tax Identification Number (last 4 digits) Schedule number or exhibit Year/Period ended statute or its history for treating unrelated rental income of social clubs differently from any other unrelated club income.
Coastal Club, Inc., 43 T.C. 783 (1965), the Tax Court held a corporation organized as a duckhunting club which repeatedly leased its property for the exploration for and the production of oil and gas was not exempt from income tax under section 501 (c)(7). The Court noted that the oil and gas lease income exceeded the amounts received from its members in the form of dues and service and guest charges and also supplied more than half of the amounts required and expended for operations, repairs, maintenance, and improvements, the Court felt that if the petitioner were held exempt under the statute, such holding would attribute an intent to Congress that in enacting section 501 (c)(7), Congress had not intended.
Taxpayer Position
The taxpayer has not yet been pr~sentecj with this formal report. ,,,_~:;-,
Government Position
Issue #1
The cited Code and Regulations above provide criteria for recognition of a tax-exempt organization under IRC 501 (c)(7). Generally, an organization is to be organized and operated exclusively for pleasure, recreation, and other nonprofit purposes. In general, this exemption extends to social and recreation clubs which are supported solely by membership fees, dues, and assessments.
In the case of the organization under examination, it was granted exemption in , as a social club under IRC 501 (c)(7). IRC 501 c 7 organizations are limited to the amount of investment/nonmember income that it can receive and still maintain its exempt status.
IRC 501 c 7 organization investment/nonmember income limitation is % of the gross revenue received.
In U.S. v. Fort Worth Club of Fort Worth, Tex., 345 F.2d 52, [a social clubs') There is no basis in the statute or its history for treating unrelated rental income of social clubs differently from any other unrelated club income.
In the year of examination, investment/nonmember income was % of the total income received. The facts provided about the organization under examination shows that for the years , the entity received an average of % of its revenue from rental and investment income.
The has exceeded the % investment income/nonmember limitation for out of the identified years.
The subject organization does not qualify for exemption under IRC 501 C 7.

# Conclusion

Form 886-A {Rev. 5-2017)
Form 886-A
Name of taxpayer
Department of the Treasury - Internal Revenue Service
Explanations of Items
Tax Identification Number (last 4 digits) Schedule number or exhibit
Year/Period ended
Based on the above facts and circumstances, and considering the statutory law and rulings cited.
The organization has exceeded the % investment/nonmember income limitation for out years. The organization does not qualify for tax-exemption under IRC §501 (c)(7) and should be revoked. The proposed date of the revocation is Form , U.S. Corporation Income Tax Return should be filed for and thereafter if the organization continues to be subject to income tax.
Issue #2
Can the organization utilize the net operating loss (NOL) from income? activity to offset investment The organization receives rental income from its residential located at . The organization has shown a net operating loss (NOL) from its activities for the last years. The income and the NOL have been reported on form The organization offset its losses from the rental income against the earnings from its investment income and reported no unrelated business taxable income or tax.
For the tax years of and , the organization underreported the amount of investment income on form For the correct total amount of investment income that should have been reported on form was$ , the organization reported$ For the correct total amount of investment income that should have been reported on form was $ the organization reported $ As per form Form ' has a loss of $ from rental activity and net investment income of $ , NOL applied $ , tax liability Form ' has a loss of $ from rental activity and net investment income of $ , NOL applied $ , tax liability Form ' has a loss of $ from rental activity and net investment income of $ , NOL applied $ , tax liability Form ' has a loss of $ from rental activity and net investment income of $ , NOL applied $ , tax liability Form ' has a loss of $ from rental activity and net investment income of $ , NOL applied $ , tax liability Form 886-A
Name of taxpayer

# Law

Department of the Treasury - Internal Revenue Service
Explanations of Items
Tax Identification Number (last 4 digits) Schedule number or exhibit
Year/Period ended
IRC section 501 (c)(7) provides exemption from income taxes for "clubs organized for pleasure, recreation, and other nonprofitable purposes, substantially all of the activities of which are for such purposes and no part of the net earnings of which inures to the benefit of any private shareholder."
Regulations §1.501(c)(7)-1(a) further provides that "In general, this exemption extends to social and recreation clubs which are supported solely by membership fees, dues, and assessments IRC§ 511(a)(1) imposes a tax on the unrelated business taxable income (UBTI) of organizations described in§ 501 (c).
IRC § 512(a)(3)(A) defines unrelated business taxable income for IRC 501 (c)(7) social clubs as gross income excluding any exempt function income, less the deductions allowed that are directly connected with the production of the income.
IRC § 512(a)(3)(B) Exempt function income is defined as "gross income from dues, fees, charges, or similar amounts paid by members of the organization as consideration for providing such members or their dependents or guests goods, facilities, or services in furtherance of the purposes constituting the basis for the exemption of the organization to which such income is paid."
Rev Rul 81-69, 1981-1 CB 351 addresses the issue of deducting from net investment income the losses incurred on sales to nonmembers. In this ruling, a social club exempt under IRC 501 (c)(7) consistently had losses over a period of years from the sale of food and beverages to nonmembers. They also had income from investments undertaken for profit. It was determined that the sales to nonmembers were not profit motivated because of the continuous losses from the activity. As such, the exempt organization could not offset losses from this activity against income from investments which were profit motivated.
Portland Golf Club v. C.I.R., 497 U.S. 154, losses incurred as a result of taxpayer's sales to nonmembers could be offset against investment income only if nonmember sales were undertaken with intent to profit.
North Ridge Country Club v. Commissioner, 877 F.2d 750 (1989), the Court ruled that a social club "can properly deduct losses from a non-member activity only if it undertakes that activity with the intent to profit, where profit means the production of gains in excess of all direct and indirect costs.
U.S. v. Fort Worth Club of Fort Worth, Tex., 345 F.2d 52, [a social clubs'] exemption stands on a different footing from that of charitable and educational institutions. There is no basis in the Form 886-A
Name of taxpayer
Department of the Treasury - Internal Revenue Service
Explanations of Items
Tax Identification Number (last 4 digits) Schedule number or exhibit Year/Period ended statute or its history for treating unrelated rental income of social clubs differently from any other unrelated club income.
Crile v. C.I.R., T.C. Memo. 2014-202, taxpayer had actual and honest objective of making a profit from her work as artist, despite history of losses and only occasional profits, and thus taxpayer's art activity was trade or business for which she could deduct business expenses … The Court relying on Hulter v. Commissioner, 91 T.C. 371, held that to be entitled to deductions under [IRC §162], the taxpayer must show that she engaged in the activity with an actual and honest objective of making a profit.
The Supreme Court ruled on this issue in the case of Portland Golf Club v Commissioner of
Internal Revenue, No. 89-530, June 21, 1990 (497 U.S. 154, 110 S.Ct. 2780). The court held that the net loss from the sales to nonmembers was only deductible from the investment income if the nonmember activity was motivated by intent to profit. The nonmember sales activity was determined not to be profit motivated because for eight straight years the club reported losses from its nonmember sales activity.
Taxpayer Position
The taxpayer has not yet been presented with this formal report
Government Position
In this case, the organization has reported losses via its rental activity in out of the last years. Therefore, there is no intent to profit from the organization's rental activity. Because there is no intent to make a profit, the losses from the rental activity cannot be used to reduce the investment income.
Rev Rul 81-69 stated that intent to profit could not be shown when there were continuous losses from the activity.
Portland Golf Club v Commissioner of Internal Revenue, The Supreme Court ruled that losses from nonmember sales were only deductible from investment income when there was intent to profit from the activity.
Unrelated business income tax must be paid on the investment income of $ for and$ for less expenses and specific deduction allowed for each year.

# Conclusion

Investment income cannot be offset with losses from an unrelated trade or business that is determined to be not profit motivated. The government concludes that NOL from the activity is not profit motivated, as per Portland Court case.
Form 886-A
Name of taxpayer
Department of the Treasury - Internal Revenue Service
Explanations of Items
Tax Identification Number (last 4 digits) Schedule number or exhibit
Year/Period ended
Unrelated business income tax must be paid on the investment income of$ for and $ for less expenses and specific deduction allowed for each year.
Adjustment
Investment Income
I I I I I
Expenses
Special deduction
Taxable income
I I I I I
% %
Tax
Alternative Position
If the proposed revocation of exempt status is not upheld, should the organization be required to pay tax on the investment income and not utilize the NOL to offset the investment income?

# Facts

The organization filed form organization filed form ending and and reported income and investment income. The and underreported its investment income on form for the years The expenses exceeded the income and the organization has reported a NOL. The organization has reported a NOL for years on the activity. The organization has utilized the NOL from the rental activity to offset the investment income and pay no income tax.

# Law

IRC§ 511(a)(1) imposes a tax on the unrelated business taxable income (UBTI) of organizations described in § 501 (c).
IRC § 512(a)(3)(A) defines unrelated business taxable income for IRC 501 (c)(7) social clubs as gross income excluding any exempt function income, less the deductions allowed that are directly connected with the production of the income.
Form 886-A
Name of taxpayer
Department of the Treasury - Internal Revenue Service
Explanations of Items
Tax Identification Number (last 4 digits) Schedule number or exhibit
Year/Period ended
IRC § 512(a)(3)(B) Exempt function income is defined as "gross income from dues, fees, charges, or similar amounts paid by members of the organization as consideration for providing such members or their dependents or guests goods, facilities, or services in furtherance of the purposes constituting the basis for the exemption of the organization to which such income is paid."
Rev Rul 81-69, 1981-1 CB 351 addresses the issue of deducting from net investment income the losses incurred on sales to nonmembers. In this ruling, a social club exempt under IRC 501 (c)(7) consistently had losses over a period of years from the sale of food and beverages to nonmembers. They also had income from investments undertaken for profit. It was determined that the sales to nonmembers were not profit motivated because of the continuous losses from the activity. As such, the exempt organization could not offset losses from this activity against income from investments which were profit motivated Portland Golf Club v. C.I.R., 497 U.S. 154, losses incurred as a result of taxpayer's sales to nonmembers could be offset against investment income only if nonmember sales were undertaken with intent to profit.
North Ridge Country Club v. Commissioner, 877 F.2d 750 (1989), the Court ruled that a social club "can properly deduct losses from a non-member activity only if it undertakes that activity with the intent to profit, where profit means the production of gains in excess of all direct and indirect costs.
U.S. v. Fort Worth Club of Fort Worth, Tex., 345 F.2d 52, [a social clubs'] exemption stands on a different footing from that of charitable and educational institutions. There is no basis in the statute or its history for treating unrelated rental income of social clubs differently from any other unrelated club income.
Crile v. C.I.R., T.C. Memo. 2014-202, taxpayer had actual and honest objective of making a profit from her work as artist, despite history of losses and only occasional profits, and thus taxpayer's art activity was trade or business for which she could deduct business expenses … The Court relying on Hulter v. Commissioner, 91 T.C. 371, held that to be entitled to deductions under [IRC §162], the taxpayer must show that she engaged in the activity with an actual and honest objective of making a profit.
Portland Golf Club v Commissioner of Internal Revenue, No. 89-530, June 21, 1990 (497
U.S. 154, 110 S.Ct. 2780). The court held that the net loss from the sales to nonmembers was only deductible from the investment income if the nonmember activity was motivated by intent to profit. The nonmember sales activity was determined not to be profit motivated because for eight straight years the club reported losses from its nonmember sales activity.

# Conclusion

The organization has conducted rental activity for over years. The organization has not reported a profit on this activity in over years. The organization has utilized the NOL from its activity to offset the investment income and pay no tax.
The activity has not showed a profit motive and therefore the losses cannot be used to offset the investment income.
Schedule number
Department of the Treasury - Internal Revenue Service Form 886-A Name of taxpayer or exhibit
Explanations of Items
Tax Identification Number (last 4 digits) Year/Period ended The organization shall increase the amount of underreported investment income on form the years ended for and and pay the appropriated tax after allowed expenses and special deductions.
I I
Investment Income
Expenses
Special deduction
I I
Taxable income
%
Tax
Adjustment
I I I
I I I
%
Page … 1Q_

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