United Cancer Council, Inc. - Page 114

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          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).                                    






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