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When it transmitted its Forms 990-T for 1993, 1994, and 1995
and paid the tax liability for 1993, petitioner attached a letter
stating in pertinent part:
Enclosed is [a] check * * * in the amount of $573.75
for payment in full of all assessed taxes and penalties for
calendar year 1993. It is my understanding that there were
no taxes or penalties for 1994 and 1995. This check is
being delivered to you as an offer in settlement in
connection with the above-referenced tax audit and dispute.
It is a condition precedent for the delivery of this check
to the Internal Revenue Service that it agree to the above.
After receiving the Forms 990-T for 1993, 1994, and 1995,
respondent cashed the check but did not propose additional taxes
and did not issue a notice of deficiency.
On January 28, 1998, respondent made a determination that
petitioner was a private foundation under section 509(a),
effective January 1, 1993. However, petitioner's section
501(c)(3) status remained undisturbed.
Discussion
The sole issue for decision is whether respondent correctly
determined that petitioner, an exempt organization under section
501(c)(3), is not a publicly supported organization described in
section 509(a)(2) and therefore is a private foundation.
Although the case was submitted on the stipulated record pursuant
to Rule 122, petitioner bears the burden of proof as to whether
it is a publicly supported organization as described in section
509(a)(2). See Rule 217(c)(2)(A).
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