To be exempt from federal income taxation, a church must satisfy several conditions enumerated in section 501(c)(3) of the tax code. One of these conditions is that no part of a church’s net earnings may “inure” to the personal benefit of an insider. A related condition is that a church cannot provide a substantial “private benefit” to anyone. It is important for church leaders to be familiar with these conditions since a violation jeopardizes a church’s tax-exempt status. This article explains these requirements in light of the most recent precedent and identifies church practices that may violate one or both limitations.
Inurement defined
Section 501(c)(3) of the federal tax code exempts the following organizations from federal income tax:
Corporations, and any … fund or foundation, organized and operated exclusively for religious, charitable … or educational purposes … no part of the net earnings of which inures to the benefit of any private … individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation … and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office. (emphasis added)
The Internal Revenue Service (IRS) construes the inurement prohibition as follows:
Churches and religious organizations, like all exempt organizations under Internal Revenue Code section 501(c)(3), are prohibited from engaging in activities that result in inurement of the church’s or organization’s income or assets to insiders (i.e., persons having a personal and private interest in the activities of the organization). Insiders could include the minister, church board members, officers, and in certain circumstances, employees.
Examples of prohibited inurement include the payment of dividends, the payment of unreasonable compensation to insiders, and transferring property to insiders for less than fair market value. The prohibition against inurement to insiders is absolute; therefore, any amount of inurement is, potentially, grounds for loss of tax-exempt status. In addition, the insider involved may be subject to excise tax … . Note that prohibited inurement does not include reasonable payments for services rendered, payments that further tax-exempt purposes, or payments made for the fair market value of real or personal property. IRS Publication 1828.
The IRS Internal Revenue Manual (IRM) notes that “despite the explicit prohibition of inurement, neither Internal Revenue Code nor the Treasury regulations defines it.” But the IRS has noted that it has “adopted the viewpoint that the prohibition relates only to insider-controlled benefits,” meaning a transaction between the exempt organization and an individual who is an insider.” An insider is someone who, “by virtue of his or her position within the organization, has the ability to influence or control application of the organization’s net earnings.” IRM § 4.76.3.11.2. The IRM also notes that “an insider can be the founder, his family, an employee, a board of directors member, a related corporation, or even a fund-raiser.”
The IRS has acknowledged that “there is nothing in section 501(c)(3) to prohibit dealings between a charitable organization and its insiders (those in controlling positions) as long as those dealings are at arm’s length, in good faith, and reasonable. For example, if an organization pays a reasonable compensation to its founder for services rendered, that is not inurement. However, when the interests of the charity are sacrificed to the private interests of the founder or those in control, exemption is precluded because the organization is serving private interests.” Id.
The IRS has noted that court cases applying the inurement prohibition have fallen into three categories:
First, inurement can take the form of “questionable transactions that have no relationship to the organization’s exempt purposes but result in some benefit to an insider, whether or not the insider provides goods and services of commensurate value to the entity. The insider is in a position to exercise control over the organization’s net earnings as if they were his or her own by using them at will rather than within limitations of an employer-employee or fiduciary capacity. In effect, the insider is using the public’s net earnings for his or her own benefit.” Id.
The IRM cites two cases as examples of this first type of inurement.
John Marshall Law School and John Marshall University v. United States, 228 Ct. Cl. 902 (1981)
The court held that personal expenses paid on behalf of the family controlling a law school were not part of reasonable compensation. The plaintiff argued that if these payments had been included in salary, the salary still would be reasonable. However, the court said the expenses were not paid as additional salary or treated as compensation on the corporate books. Instead, they were paid at the insider’s discretion. He was free to make personal use of the corporate funds for himself and family when and if he chose to do so. The court upheld the [IRS] in the revocation of the school’s exempt status based on inurement.
The Founding Church of Scientology v. United States, 412 F.2d 1197 (Ct. Cl. 1969)
The court reasoned that even if the salary paid to the organization’s founder was reasonable, absence of a suitable explanation for other payments made to and for his family and him disqualified the organization for tax-exempt status. “If in fact a loan or other payment in addition to salary is a disguised distribution or benefit from the net earnings, the character of the payment is not changed by the fact that the recipient’s salary, if increased by the amount of the distribution or benefit, would still have been reasonable.”
A second category of inurement exists when “an insider receives a return benefit from the exempt organization that is greater than the value of the goods and services provided to it. A private … individual benefits from the expenditure of the organization’s funds (net earnings) in some manner when a payment is not reasonable for what the organization gets in exchange, meaning the organization either has paid too much or charged too little. In either case, monies that should have been expended for exempt purposes went to private inurement … . ‘Reasonableness’ is an issue that has posed problems for the courts because it is not a concept that easily lends itself to preciseness or measurement.”
The IRM cites the following case as an example of this second type of inurement:
Anclote Psychiatric Center, Inc. v. Commissioner, T.C. Memo 1998-273
An exempt psychiatric hospital’s officers and directors sought to convert the organization to a for-profit and sell it to an entity the board created. The question before the court was whether the sale price was close enough to fair market value to conclude there was no inurement. The court concluded: “Recognizing what is fair market value presents an inherently imprecise issue. We see our task as one of determining whether the sale price was within a reasonable range … . Our task is not unlike that which we face when inurement depends upon a determination whether payments of compensation are excessive or reasonable.”
The court said that while fair market value is important, it is not a definite figure that can be compared to a sale price and thus, automatically measure inurement. Even two appraisers can disagree on what is “fair market value.” Among other factors, inadequate arm’s length negotiations could affect the sale price and give rise to inurement if the value received is not reasonably within range of the value transferred. In this case, the organization’s sale price to the insiders was more than $1 million under a fair market value and outside any reasonable range. The court ruled that tax-exempt status was properly revoked based on private inurement.
A third category of inurement “does not hinge upon the reasonableness of expenditure amounts or whether they were made for the organization’s exempt purposes. Private inurement also can occur where an exempt organization and a taxable entity are structured so closely that an insider benefits financially from the arrangement. This type of inurement is not always obvious because the exempt organization may be paying a reasonable amount for services provided and carrying on exempt activities.”
Examples of inurement
The IRS has found private inurement in several cases, including the following:
Riemers v. Commissioner, 42 T.C.M. 838 (1981). A church, consisting mostly of family members and conducting few, if any, religious services, that paid rent on a residence for the church’s “ministers,” paid for a church car that was used by church members, and purchased a “church camp” for church members.
General Conference of the Free Church of America v. Commissioner, 71 T.C. 920 (1979). A religious denomination whose assets could be distributed to members upon dissolution.
Church in Boston v. Commissioner, 71 T.C. 102 (1978). A church that made cash grants of 20 percent of its income to officers and other individuals based on no fixed criteria and with no provision for repayment.
People of God Community v. Commissioner, 75 T.C. 127 (1980). A church that received almost all of its income from its minister and, in turn, paid back 90 percent of such income to the minister in the form of living expenses.
New Life Tabernacle v. Commissioner, 44 T.C.M. 309 (1982). A church comprised of three minister-members that paid each minister a salary based on a fixed percentage of the church’s gross receipts.
United States v. Dykema, 666 F.2d 1096 (7th Cir. 1981); Unitary Mission Church v. Commissioner, 74 T.C. 507 (1980). A church that paid an unreasonable and excessive salary to its pastor.
The Founding Church of Scientology v. United States, 412 F.2d 1197 (Ct. Cl. 1969), cert. denied, 397 U.S. 1009 (1970). The founder of a church who was paid 10 percent of the church’s gross income, received a residence and car at the church’s expense, and received loans and unexplained reimbursements from the church. The court held that an organization’s net earnings may inure to the benefit of a private individual in ways other than excessive salaries, such as loans. The court also emphasized that the tax code specifies that “no part” of the net earnings of a religious organization may inure to the benefit of a private individual, and therefore the amount or extent of benefit is immaterial. See also Church of the Chosen People v. United States, 548 F. Supp. 1247 (D. Minn. 1982); Truth Tabernacle v. Commissioner, 41 T.C.M. 1405 (1981).
Key point. Another result of inurement is the potential disqualification of a church to receive tax-deductible charitable contributions. In one case a religious ministry paid for a minister-employee’s personal expenses, including scholarship pledges made in the minister’s name and a season ticket for a local college football team. The tax code allows a charitable contribution deduction for contributions made to a charity, “no part of the net earnings of which inures to the benefit of any private shareholder or individual.” IRC 170. The court noted that the minister received payments from his employer (football tickets and scholarship pledges) and that these payments inured to his benefit. In addition, the minister failed to establish that the payments were compensation. Accordingly, the minister was not allowed to deduct the contributions he made to his employer. Whittington v. Commissioner, T.C. Memo. 2000-296 (2000).
Triplett v. Commissioner, T.C. Summary Opinion 2005-148
The Tax Court ruled that a church did not qualify for tax-exempt status because its publishing activities constituted a substantial nonexempt activity. The pastor of the church wrote a number of books and pamphlets that were published and sold by the church. He claimed that the church’s book publishing activities were a significant aspect of its activities.
The court concluded, “Although the books had a religious theme, writing and publishing books is not a religious activity unless petitioner can prove the primary purpose for publishing the books was not for profit but for the furtherance of a nonexempt [sic] purpose. [The pastor] testified that the church distributed the books at cost; however, he introduced no evidence in support of this statement. Absent introduction of any financial statements from the church whatsoever, the court cannot evaluate whether the church did not in fact profit from the publishing and distribution of books. Therefore, the court finds that the publishing and distributing of books by the church was a substantial nonexempt activity. The existence of this substantial nonexempt purpose precludes the church from qualifying as an exempt organization.”
The court further concluded, “The nature of this nonexempt activity, publishing books, was conducted for the exclusive benefit of the pastor, not the public. [He] authored each of the books the church published. He then paid all publishing costs from his personal bank account and deducted the costs as a charitable deduction on his federal income tax returns. The IRS argues that the pastor essentially incorporated the church to enable the publishing of books he authored. This argument is well founded. A substantial percentage of the pastor’s earnings went to the church; yet, his was the sole authorized signature of this account. No evidence was offered to establish that the church had members or received contributions from others. It did not maintain any books and records. In effect, the pastor was using a claimed church as his pocket book. Therefore … the church fails the ‘private inurement’ test of section 501(c)(3).”
IRS Private Letter Ruling 200926037 (2009)
The IRS denied tax-exempt status to a religious organization (the “applicant”) as a result of no-interest loans it made to various individuals that served a private rather than a charitable or religious purpose. The applicant’s corporate charter described its purposes to include the maintenance of a house of worship and seminary. The governing board of the applicant was comprised of three individuals, all of whom have both family and business relationships. The applicant’s religious tenets prohibited it from charging interest on loans.
The IRS, in denying tax-exempt status to the applicant, noted that the applicant had made loans to a business operated by its three board members, and additional loans to its treasurer, and to three outsiders to assist with their for-profit businesses. The IRS observed: “Each of these five loans is questionable as the intent of each loan does not appear charitable. While the loan documentation stipulates a return of a contribution in lieu of interest, thereby potentially lessening the private gain of a loan, this does not appear to have occurred. Each appears to be furthering the private interest of an individual or business causing both private benefit and inurement.”
The IRS concluded: “Overall, while the applicant does conduct religious services, the loan activities they have directed disqualify them from exemption as the structure and intention has only served related parties and private interests. The organization itself seems to be an outlet for distributions from a related for-profit entity for the purpose of distributions and loans. While by definition some of the recipients of these loans could be deemed needy the purposes listed for which the loans were made further no 501(c)(3) purposes in eliminating direct charitable need. The facts in the application and supplemental correspondence show that the board had been controlling all aspects of the applicant for their private interests and not for the benefit of the public.”
In re First Church, 2011 WL 2302540 (Pa. Common. 2011)
A Pennsylvania court addressed the issue of whether a church acted properly when it dissolved due to declining attendance, sold its assets, and transferred most of the $750,000 sales price to the pastor as compensation for wages it was previously unable to pay. The state had claimed that by voting to approve the compensation package, the pastor and other members of the church board violated a fiduciary duty imposed by the nonprofit corporation law and engaged in “self-dealing to inure benefits to private individuals.” A state appeals court dismissed the church’s appeal on a technical ground. But as the trial court in this case noted, such dispositions of the proceeds from the sale or church assets have a number of potential legal and tax consequences, including potential inurement of the church’s assets for the private benefit of an individual in violation of the tax code.
The latest IRS rulings addressing inurement
The IRS issued three rulings in 2015 addressing inurement in the context of religious organizations. Each ruling is summarized below.
#1. Private Letter Ruling 201517014 (2015)
The IRS made the following comments regarding the meaning of the inurement prohibition:
1. The inurement prohibition “is designed to prevent the siphoning of charitable receipts to insiders of the charity.” United Cancer Council v. Commissioner. 165 F.3d 1173 (7th Cir. 1999). Reasonable compensation does not constitute inurement.
2. “Excessive compensation for services is a form of inurement.” For example, in Mabee Petroleum Corp. v. U.S., 203 F. 2d 872, 875 (5th Cir. 1953), a federal appeals court held that an exempt organization’s payment of a full-time salary for part-time work was inurement.
3. The use by insiders of the organization’s property for which the organization does not receive adequate consideration is a form of inurement. For example, a federal appeals court ruled that insiders’ use of organization-owned automobiles and housing constituted inurement. The Founding Church of Scientology v. U.S., 412 F.2d 1197 (Ct. CI. 1969).
4. Loans that are “financially advantageous to insiders from the organization’s funds (particularly unexplained, undocumented loans) are a form of inurement.” For example, in The Founding Church of Scientology v. U.S., 412 F.2d 1197 (Ct. CI. 1969), the court listed unexplained loans to and from insiders among the examples of inurement. In Greg R. Vinikoor v. Commissioner. T.C. Memo. 1998-152, the Tax Court held that whether a financial transaction constitutes a loan depends on all the facts and circumstances, including whether (1) there was a promissory note or other evidence of indebtedness; (2) interest was charged; (3) there was security or collateral; (4) there was a fixed maturity date; (5) a demand for repayment was made; (6) any actual repayment was made; (7) the transferee had the ability to repay; (8) any records maintained by the transferor and/or the transferee reflected the transaction as a loan; and (9) the manner in which the transaction was reported for federal tax purposes.
5. “Payment to one person for services performed by another (or for services presumed to be performed, without any proof of performance) is a form of inurement.” It referred to a case in which a federal court ruled that the payment of salary to the founder’s daughter without any proof that she actually performed any services for the organization constituted inurement. The Founding Church of Scientology v. U.S., 412 F.2d 1197 (Ct. CI. 1969).
6. “Unaccounted for diversions of a charitable organization’s resources by one who has complete and unfettered control can constitute inurement.”
The IRS concluded that an exempt organization under examination was not eligible for tax-exempt status for the following reasons:
• The officers expended the organization’s funds for nonexempt purposes, including paying their personal expenses.
• The officers used the organization funds to pay monthly auto loans and insurance and there was no documentation of any business use of the vehicles.
• They also used the organization’s corporate credit card to purchase clothing, furniture, and other personal items.
• The organization made a loan to at least one of the officers without any terms of repayment.
• There was no internal control to ensure that funds were used for exempt purposes.
• The officers had free reign over the following: (1) use of the organization’s credit cards for personal expenses; (2) transfer of funds to themselves with no documentation; (3) no record of the other board members having any involvement with the finances of the organization.
• The officers diverted thousands of dollars in payments of personal expenses, yet only had minimal documented charitable activities. The size and scope of the transactions were substantial in relation to exempt activities.
• “The excess benefit transactions between the organization and its officers were multiple and repeated. No loan documentation exists, nor are the officers known to have made any payments of principal or interest on the amounts loaned.”
• “There were no internal controls in place, the board did not question officers’ management of the organization’s funds, and no safeguards were put in place to prevent the occurrence of excess benefit transactions. No correction is known to have been sought by or made to the organization.”
The IRS concluded: “In summary, the officers operated the organization more like a personal business than an exempt organization. They had control over the organization’s funds, assets and disbursements and made use of the funds for personal use. They essentially appear to have had access to a zero interest line of credit with no promissory notes, terms of repayment, interest charged, or balance approved by an informed board of directors for purported loans … . The income and assets of the organization inured to the benefit of the officers [and thus it] was not operating exclusively for exempt purposes as required by section 501(c)(3).”
#2. Private Letter Ruling 201533022 (2015)
The IRS revoked the tax-exempt status of a public charity because of the “inurement” of its assets to the personal benefit of its president. The charity was formed to educate people about the Christian faith. Its activities consisted of creating and running a website where it posted daily devotionals and articles. Donations were also solicited on the website, and donors were assured that their donations were tax deductible.
The IRS noted that one of the requirements of tax-exempt status is that none of an organization’s assets inures to the personal benefit of an individual, other than as reasonable compensation for services. The IRS’s examination of the charity’s bank statements, canceled checks, and related books and records demonstrated that its funds were used to make payments to, or on behalf of, the president. The IRS cited the following practices:
• The president was a signer of the charity’s bank accounts, and approved expenses and endorsed checks for the payment of his own personal expenses, including signed checks payable to “cash” which were endorsed by the president.
• The charity’s funds were also used to pay for the president’s personal shopping expenses, personal residence expenses, loans, personal credit card expenses, and car payments.
• The charity did not maintain contemporaneous records documenting that the president had a housing allowance.
• The charity did not maintain contemporaneous records documenting that the president had a utilities allowance.
• The charity did not maintain contemporaneous records documenting that the president was reimbursed under an accountable plan.
• The charity did not maintain expense reports or receipts.
• Payments of expenses incurred by the president were made under a “nonaccountable” plan.
• Payment of the president’s personal expenses with the charity’s funds.
• The charity made a no-interest loan to a for-profit company owned by the president.
The IRS concluded that the charity’s tax-exempt status had to be revoked because it was not operating exclusively for exempt purposes—its net earnings inured to the benefit of its president. The IRS noted:
The charity’s exempt funds were being used for the private benefit of the organization’s president. Its funds were used to pay for its president’s clothing, jewelry, medical and dental expenses, credit card expenses, car payments, loan payments, and personal house expenses. The charity’s funds were used to make checks payable to “cash” and these checks were signed and endorsed by the president. In addition, the charity’s funds were used to make loans and cash advances to a for-profit corporation owned and controlled by the president. The loans and cash advances were made at 0% interest and were not collateralized. The charity was unable to provide proof of repayment for the loans and cash advances.
The payments of the president’s personal expenses were approved by the president. Other officers and board of director members did not approve the transactions. The organization did not seek correction of the transactions.
According to section 1.501(c)(3)-1(d)(1)(h) of the regulations, an organization is not organized or operated exclusively for one or more exempt purposes when its net earnings inure in whole or part to the benefit of private shareholders or individuals.
The IRM lists several examples of unreasonable compensation, including the withdrawal of an exempt organization’s earnings by an officer under the guise of salary payments; receipt of less than fair market value in sales of property; and inadequately secured loans to an officer.
#3. IRS Private Letter Ruling 201534014 (2015).
The IRS ruled that a religious ministry’s payment of its president’s personal expenses amounted to “inurement” disqualifying the ministry from tax-exempt status. An IRS investigation revealed that the president used ministry funds for personal use, and it cited several examples including the following: payment of car repairs, dentist expenses, meals, safe deposit expenses, gas and personal massage, no interest or low-interest loans, and reimbursement of unsubstantiated business expenses. The IRS noted that “overall, the provisions governing organizations exempt under section 501(c)(3) prohibit charitable organizations from allowing their assets to inure to the benefit of any individual or entity. Violations of these requirements are grounds for revocation of exemption.” The IRS referenced the Tax Court’s decision in Bubbling Well Church of Universal Love, Inc. v. Commissioner, 74 T.C. 531 (1980) in which the court held that “where the creators control the affairs of the organization, there is an obvious opportunity for abuse, which necessitates an open and candid disclosure of all facts bearing upon the organization, operations, and finances so that the court can be assured that by granting the claimed exemption it is not sanctioning the abuse of the revenue laws.”
Private benefit distinguished from inurement
Closely related to, but distinguishable from, inurement is the concept of private benefit. The IRM acknowledges that “the two terms are closely related and often are used interchangeably. However, they are two separate issues. Not treating them as such is not only erroneous but also can lead to incorrect conclusions … . The first key is that inurement applies to those who are ‘inside,’ or in control, of the organization, whereas private benefit applies to a broader base. Private benefit encompasses those who are not only inside but also ‘outside’ the organization. Thus, all inurement is private benefit, but not all private benefit is inurement.” IRS § 4.76.3.11.1.
IRS Publication 1828 explains the difference between inurement and private benefit as follows:
An IRC section 501(c)(3) organization’s activities must be directed exclusively toward charitable, educational, religious, or other exempt purposes. Such an organization’s activities may not serve the private interests of any individual or organization. Rather, beneficiaries of an organization’s activities must be recognized objects of charity (such as the poor or the distressed) or the community at large (for example, through the conduct of religious services or the promotion of religion). Private benefit is different from inurement to insiders. Private benefit may occur even if the persons benefited are not insiders. Also, private benefit must be substantial in order to jeopardize tax-exempt status. IRS Publication 1828.
Note the following two important distinctions between inurement and private benefit:
1. Inurement applies to insiders; private benefit applies to anyone receiving benefits from a public charity.
2. Inurement involves any use of a charity’s resources for the private benefit of an insider, regardless of amount; private benefit must be substantial in order to jeopardize tax-exempt status.
The IRS has acknowledged that
sometimes a public charity by its very nature benefits particular individuals in order to achieve its charitable purposes. The courts have recognized that a single activity can serve both an exempt and a nonexempt purpose. For example, an educational organization confers primary private benefit by instructing or training an individual for the purpose of improving and developing his or her capabilities. A hospital confers private benefit on an individual patient through the process of health care. This type of private benefit is often referred to as “incidental” or “permissible.” To be incidental, a private benefit must occur as a necessary result of the activity that benefits the public at large. In other words, the benefit to the public cannot be achieved without indirectly or unintentionally benefitting private individuals. IRM § 4.76.3.11.3.
The prohibition against private benefit does not derive from the ban on inurement. Rather, it is based on the “operational test” in section 501(c)(3) that requires an exempt organization to be operated exclusively for exempt purposes. The Treasury regulations specify that an organization is not organized or operated exclusively for one or more exempt purposes unless it serves a public rather than a private interest. The burden is on the organization to establish that it is not organized and operated for the benefit of private interests such as designated individuals, the creator or his family, shareholders of the organization, or persons controlled, directly or indirectly, by private interests. The organization’s activities must be broad enough in scope to confer a public benefit versus serving to benefit only a few. Treas. Reg. § 1.501(c)(3)-1(d)(1)(ii).
The IRM contains the following table comparing inurement with private benefit:
| Inurement | Private Benefit |
| Insider (private shareholder or individual in a position to control) benefit is prohibited. | Private benefit may also accrue to anyone outside the charitable class. |
| Net earnings cannot benefit a private shareholder or individual. | Insubstantial benefits can be conferred upon a private individual or class of individuals. |
| Section 501(c)(3) prohibits any inurement. | Private benefit cannot be substantial. |
Excess benefit transactions
Section 4958 of the tax code imposes an excise tax, commonly known as “intermediate sanctions,” on excess benefit transactions between a “disqualified person” and a tax-exempt organization. Although section 501(c)(3) of the tax code still provides for loss of exemption in the case of any private inurement, the legislative history shows that section 4958 was enacted to impose a sanction in those cases where an excess benefit does not rise to a level where it calls into question the organization’s tax-exempt status.
A disqualified person is a person in a position to exercise substantial influence over the affairs of the organization at any time during the five-year period before the benefit transaction in question occurred. Family members and entities controlled by the disqualified person are also considered disqualified persons.
An “excess benefit transaction” is one in which the organization provides an economic benefit to the disqualified person, and the value of the compensation or other benefit provided exceeds the value of the services received in return. Treas. Reg. § 53.4958-4.
The IRS considers all forms of compensation and benefits in deciding if a particular transaction constitutes an excess benefit transaction. These include salary, fringe benefits, loans, and nonaccountable expense reimbursements.
The excise tax the IRS can assess against a disqualified person is steep—up to 225 percent of the amount of the excess benefit. The IRS also can assess an excise tax of up to 10 percent of the amount of the excess benefit against each of an exempt organization’s “managers” (i.e., directors) who approved an excess benefit transaction, up to a total combined penalty of $20,000.
Also, note that in a series of four cases in 2004 involving compensation paid by a church to its senior pastor and members of his family, the IRS ruled that any fringe benefit, regardless of amount, that is not reported by the employer or employee as taxable income results in an “automatic” excess benefit.
