- 98 - B. Did Any of Petitioner’s Net Earnings Inure to W&H? Petitioner points out that respondent has the burden of proof, and contends that respondent has failed to carry this burden. Respondent acknowledges having the burden of proof, but contends that this burden has been carried because it was shown that W&H received “excessive and unreasonable compensation (and other private benefit)” from petitioner. Mailers argues that private inurement does not result from a third-party contract for fair market value and contends that the Contract was at “Market Rate”, especially in light of all the facts and circumstances when the Contract was executed. We agree with respondent’s conclusion. An organization’s payment of reasonable compensation to an insider for services performed for the organization would not constitute inurement of net earnings,26 but payment of excessive compensation would. United States v. Dykema, 666 F.2d 1096, 1101 (7th Cir. 1981); Unitary Mission Church v. Commissioner, 74 T.C. 507, 514 (1980), affd. without published opinion 647 F.2d 163 (2d Cir. 1981). Whether the compensation in question is reasonable 26 Neither side suggests that we should examine the statutory term “net earnings”, and so we do not. See People of God Community v. Commissioner, 75 T.C. 127, 132 n.5 (1980); Alive Fellowship of Harmonious Living v. Commissioner, T.C. Memo. 1984- 87 n.21; see also discussion in B. Hopkins, The Law of Tax-Exempt Organizations, sec. 13.4 (6th ed. 1992).Page: Previous 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 Next
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