John W. Madden, Jr., et al. - Page 30

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          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-           





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