[Code of Federal Regulations] [Title 26, Volume 17] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [CITE: 26CFR53.4958-2] [Page 216-217] TITLE 26--INTERNAL REVENUE CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY (CONTINUED) PART 53_FOUNDATION AND SIMILAR EXCISE TAXES--Table of Contents Subpart K_Second Tier Excise Taxes Sec. 53.4958-2 Definition of applicable tax-exempt organization. (a) Organizations described in section 501(c)(3) or (4) and exempt from tax under section 501(a)--(1) In general. An applicable tax-exempt organization is any organization that, without regard to any excess benefit, would be described in section 501(c)(3) or (4) and exempt from tax under section 501(a). An applicable tax-exempt organization also includes any organization that was described in section 501(c)(3) or (4) and was exempt from tax under section 501(a) at any time during a five- year period ending on the date of an excess benefit transaction (the lookback period). (2) Exceptions from definition of applicable tax-exempt organization--(i) Private foundation. A private foundation as defined in section 509(a) is not an applicable tax-exempt organization for section 4958 purposes. (ii) Governmental unit or affiliate. A governmental unit or an affiliate of a governmental unit is not an applicable tax-exempt organization for section 4958 purposes if it is-- [[Page 217]] (A) Exempt from (or not subject to) taxation without regard to section 501(a); or (B) Relieved from filing an annual return pursuant to the authority of Sec. 1.6033-2(g)(6). (3) Organizations described in section 501(c)(3). An organization is described in section 501(c)(3) for purposes of section 4958 only if the organization-- (i) Provides the notice described in section 508; or (ii) Is described in section 501(c)(3) and specifically is excluded from the requirements of section 508 by that section. (4) Organizations described in section 501(c)(4). An organization is described in section 501(c)(4) for purposes of section 4958 only if the organization-- (i) Has applied for and received recognition from the Internal Revenue Service as an organization described in section 501(c)(4); or (ii) Has filed an application for recognition under section 501(c)(4) with the Internal Revenue Service, has filed an annual information return as a section 501(c)(4) organization under the Internal Revenue Code or regulations promulgated thereunder, or has otherwise held itself out as being described in section 501(c)(4) and exempt from tax under section 501(a). (5) Effect of non-recognition or revocation of exempt status. An organization is not described in paragraph (a)(3) or (4) of this section during any period covered by a final determination or adjudication that the organization is not exempt from tax under section 501(a) as an organization described in section 501(c)(3) or (4), so long as that determination or adjudication is not based upon participation in inurement or one or more excess benefit transactions. However, the organization may be an applicable tax-exempt organization for that period as a result of the five-year lookback period described in paragraph (a)(1) of this section. (b) Special rules--(1) Transition rule for lookback period. In the case of any excess benefit transaction occurring before September 14, 2000, the lookback period described in paragraph (a)(1) of this section begins on September 14, 1995, and ends on the date of the transaction. (2) Certain foreign organizations. A foreign organization, recognized by the Internal Revenue Service or by treaty, that receives substantially all of its support (other than gross investment income) from sources outside of the United States is not an organization described in section 501(c)(3) or (4) for purposes of section 4958. [T.D. 8978, 67 FR 3083, Jan. 23, 2002]