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funds will be paid. Respondent similarly states that there is no
evidence that nondisqualified directors will have any control
over the income or assets of petitioner. In particular,
respondent focuses on the fact that the only asset held by
petitioner is the Estate Storage note and observes that the
charitable gift annuity obligation will require payments equal to
the majority of the note’s annual income. Hence, it is
respondent’s view that there are, as a practical matter, no
meaningful assets or investments for the board to manage.
At the outset, we reiterate that respondent bears the burden
of proof on this issue, which creates a situation quite different
from that in Roe Found. Charitable Trust v. Commissioner, supra,
cited favorably by respondent. In Roe Found. Charitable Trust v.
Commissioner, supra, we relied in significant part on the
taxpayer’s failure to indicate how the relevant trustee would
have a significant voice. Here respondent must demonstrate that
AEF will not have the requisite significant voice, and we
conclude respondent has not done so.
Mr. Gallina is one of five directors, and petitioner has
represented that the AEF director will have a voice equal to any
of the remaining four. Respondent has not established otherwise.
Petitioner’s articles of incorporation empower the corporation
through its board of directors to carry out the purposes of the
entity by, among other things, owning, acquiring, transferring,
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