- 30 - knows that the act is an act of self-dealing, and (3) the participation by the foundation manager is willful and is not due to reasonable cause. Sec. 53.4941(a)-1(b)(1), Foundation Excise Tax Regs. Respondent must prove, by clear and convincing evi- dence, that the foundation managers participated knowingly in the self-dealing transaction. Sec. 7454(b); Rule 142(c). We first turn to the regulations to provide the initial guidance in applying section 4941(a)(2). The regulations interpret what the statute requires for knowing participation. Section 53.4941(a)-1(b)(3), Foundation Excise Tax Regs., states: a person shall be considered to have participated in a transaction "knowing" that it is an act of self-dealing only if-- (i) He has actual knowledge of sufficient facts so that, based solely upon such facts, such transaction would be an act of self-dealing, (ii) He is aware that such an act under these circumstances may violate the provisions of federal tax law governing self-dealing, and (iii) He negligently fails to make reasonable attempts to ascertain whether the transaction is an act of self-dealing, or he is in fact aware that it is such an act. The regulations specify that the term "knowing" does not mean "having reason to know", but evidence that shows a person has a reason to know a fact is relevant in determining whether that person has actual knowledge of that fact. Id. These regulations were adopted in 1972, 3 years after the passage of the statute, and have not been substantially modified since that time. There-Page: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
Last modified: May 25, 2011