REDLANDS SURGICAL SERVICES - Page 47




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               The proscription against private benefit corresponds to a              
          similar proscription in the law of charitable trusts.  “A trust             
          is not a charitable trust if the property or the income therefrom           
          is to be devoted to a private use.”  2 Restatement, Trusts 2d,              
          sec. 376 (1959).  An organization’s property may be impermissibly           
          devoted to a private use where private interests have control,              
          directly or indirectly, over its assets, and thereby secure                 
          nonincidental private benefits.                                             
               For instance, in est of Hawaii v. Commissioner, 71 T.C. 1067           
          (1979), several for-profit ‘est’ organizations that had no formal           
          structural control over the nonprofit entity in question                    
          nevertheless exerted "considerable control" over its activities.            
          The for-profit organizations set fees that the nonprofit charged            
          the public for training sessions, required the nonprofit to carry           
          on certain types of educational activities, and provided                    
          management personnel paid for and responsible to one of the for-            
          profits.  Under a licensing agreement with the for-profits, the             
          nonprofit was allowed to use certain intellectual property for 10           
          years, and at the end of the licensing agreement, all copyrighted           
          material, including new material developed by the nonprofit, was            
          required to be turned over to the for-profits.  The nonprofit was           
          required to use its excess funds for the development of ‘est’ or            
          related research.  The for-profits also required that trainers              
          and local organizations sign an agreement not to compete with               






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Last modified: May 25, 2011