Michael T. Caracci and Cindy W. Caracci, et al. - Page 55




                                       - 55 -                                         
                    Excess                               5,164,000                    
          III.  Excise Taxes Under Section 4958                                       
               Section 4958, the provisions of which are set forth in the             
          appendix to this report, was added to the Internal Revenue Code             
          by the Taxpayer Bill of Rights 2, Pub. L. 104-168, sec. 1311(a),            
          110 Stat. 1452, 1475 (1996).11  Section 4958 is patterned after             
          section 4941, which applies to acts of self-dealing between                 
          private foundations and disqualified persons.  Section 4958                 
          applies to public charities and social welfare organizations                
          which are exempt from Federal income taxes.12                               
               Section 4958 was enacted to impose penalty excise taxes as             
          “intermediate” sanctions in cases where organizations exempt from           
          tax under section 503(c) engage in “excess benefit transactions.”           
          H. Rept. 104-506, at 56 (1996), 1996-3 C.B. 49, 104.  An excess             



               11 No regulations apply to the transactions at issue.  The             
          Treasury Department published proposed regulations under sec.               
          4958 on Aug. 4, 1998, secs. 53.4958-1 through 53.4958-7, Proposed           
          Excise Tax Regs., 63 Fed. Reg. 41486 (Aug. 4, 1998), which were             
          revised and replaced by temporary regulations effective Jan. 10,            
          2001, secs. 53.4958-1T through 53.4958-8T, Temporary Excise Tax             
          Regs., 66 Fed. Reg. 2144 (Jan. 10, 2001).  On Jan. 23, 2002, the            
          Treasury Department removed the temporary regulations and                   
          published final regulations effective Jan. 23, 2002.  Secs.                 
          53.4958-0 through 53.4958-8, Excise Tax Regs., T.D. 8978, 2002-7            
          I.R.B. 500.                                                                 
               12 Sec. 4958 is generally effective for transactions                   
          occurring after Sept. 13, 1995.  At trial, the parties directed             
          considerable attention to the effective date of the transfers at            
          issue.  On brief, however, petitioners did not argue that the               
          transfers were effective on or before Sept. 13, 1995, and we deem           
          that argument to have been abandoned.                                       





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