John W. Madden, Jr., et al. - Page 34

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          foundations.  Clearly, the foundation managers were aware of the            
          potential problems with paying fees to GMC, as prior to the                 
          hiring of Dr. Manning, GMC had simply rendered the services for             
          free.  We conclude the foundation managers did not exercise                 
          ordinary prudence by relying on the advice of Dr. Manning and not           
          seeking the advice of counsel regarding these payments.  Accord-            
          ingly, we hold that the foundation managers are liable for the              
          foundation manager excise tax under section 4941(a)(2) for                  
          payments made by the Museum to GMC.                                         
          Issue 5.  Excise Tax on Other Payments Made by the Museum                   
               Respondent determined that the foundation managers are                 
          liable for the foundation manager excise tax under section                  
          4941(a)(2) for two payments made by the Museum that benefited               
          petitioner and a third payment by the Museum that benefited the             
          Company.  Specifically, the two payments which benefited                    
          petitioner, in the amounts of $2,304 and $1,343, were made by the           
          Museum for work done to petitioner's artwork.  A third payment,             
          in the amount of $3,000, related to a financial obligation of the           
          Company which was actually paid by the Museum.  As discussed                
          supra, a foundation manager excise tax under section 4941(a)(2)             
          may be imposed where (1) a tax should be imposed under section              
          4941(a)(1), (2) the participating foundation manager 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.                




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