Opinion

Milk Saving Starving Children Foundation

Court
United States Tax Court
Filed
Jan 6, 2026
Status
Unpublished
On the bench
Leyden
Cited by
0 cases
Authority
More cited than 38.0%

The opinion

United States Tax Court

T.C. Memo. 2026-1

MILK SAVING STARVING CHILDREN FOUNDATION,

Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

__________

Docket No. 13274-22X. Filed January 6, 2026.

__________

Kimberly Orazzi (an officer), for petitioner.

Mary Michelle M. McCarthy, Erika B. Cormier, and Marie E. Small, for

respondent.

MEMORANDUM OPINION

LEYDEN, Special Trial Judge: This case is before the Court on

respondent’s Motion for Summary Judgment (Motion) filed February 20,

2024. After examining petitioner’s activities for the taxable year ended

June 30, 2018, the Internal Revenue Service (IRS) 1 issued a Final

Adverse Determination Letter dated February 25, 2022, revoking

petitioner’s exemption from federal income tax under section 501(a) 2 as

an organization described in section 501(c)(3), effective July 1, 2017.

1 The Court uses the term “IRS” to refer to administrative actions taken outside

of these proceedings. The Court uses the term “respondent” to refer to the

Commissioner of Internal Revenue, who is the head of the IRS and is respondent in

this case, and to actions taken in connection with this case.

2 Unless otherwise indicated, statutory references are to the Internal Revenue

Code, Title 26 U.S.C. (I.R.C.), in effect at all relevant times, regulation references are

to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times,

and Rule references are to the Tax Court Rules of Practice and Procedure.

Served 01/06/26

2

[*2] On May 26, 2022, petitioner timely filed a Petition for a

declaratory judgment challenging the IRS’s determination. See I.R.C.

§ 7428(a)(1)(A), (b)(3). On February 20, 2024, respondent filed the

Motion moving the Court for summary adjudication in respondent’s

favor upon all issues presented. By Order served February 21, 2024, the

Court directed petitioner to respond to the Motion. On June 11, 2024,

petitioner filed a Letter with the Court. The Court characterized

petitioner’s June 11, 2024, Letter as a Motion for Extension of Time to

respond to the Motion, granted it, and gave petitioner until August 5,

2024, to file a response to respondent’s Motion. However, petitioner did

not file any further response or objection to the Motion.

For the reasons discussed below, the Court concludes that there

are not any genuine issues of material fact, and respondent is entitled

to judgment as a matter of law.

Background

Petitioner is a Pennsylvania Domestic Nonprofit Corporation,

and its principal place of business was in the Commonwealth of

Pennsylvania when the Petition was filed.

On August 15, 2023, respondent filed the Administrative Record,

appropriately certified as to its genuineness pursuant to Rule 217(b).

Petitioner has not filed any motion contesting the completeness of

Administrative Record. The following facts are drawn from the parties’

pleadings and the Administrative Record. See Rules 121(c), 217(b)(1).

They are stated solely for the purpose of deciding respondent’s Motion

and not as findings of fact in this case. See Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994).

I. Petitioner’s Application for Recognition of Exemption Under

Section 501(a)

Petitioner was incorporated on June 9, 2001, under the laws of

the Commonwealth of Pennsylvania, and it filed Articles of

Incorporation on June 18, 2001. Petitioner’s sole incorporator was

Eugene Daniel Lucas.

Subsequently, petitioner submitted to the IRS Form 1023,

Application for Recognition of Exemption Under Section 501(c)(3) of the

Internal Revenue Code (Application), dated September 14, 2001. The

IRS received it on December 5, 2001. In its Application, petitioner

described its planned activities as follows:

3

[*3] The Milk Saving Starving Children Foundation will raise

money to purchase rice, soy, and/or powdered milk. It will

solicit these products from their manufacturers. The milk

will then be distributed world-wide to starving children.

Petitioner stated in its Application that it had shipped $159.60

worth of powdered milk to Ecuador and Haiti in 2001. It also projected

that it would receive contributions for 2002 and 2003 of $1,200 and

$1,500, respectively, and that for each of those years it would make

“contributions, gifts, grants, and similar amounts paid” of $1,100 and

$1,400, respectively.

On January 28, 2002, petitioner executed Articles of Amendment-

Domestic Nonprofit Corporation to amend its Articles of Incorporation

by adding the following three additional paragraphs “[a]s a part of [its]

application for recognition of exemption from federal income tax.”

a. The organization is organized exclusively for

charitable, religious, educational, and/or scientific

purposes under section 501(c)(3) of the Internal Revenue

Code.

b. No part of the net earnings of the organization shall

inure to the benefit of, or be distributable to its members,

trustees, officers, or other private persons, except that the

organization shall be authorized and empowered to pay

reasonable compensation for services rendered and to

make payments and distributions in furtherance of the

purposes set forth in the purpose clause hereof. No

substantial part of the activities of the organization shall

be carrying on propaganda, or otherwise attempting to

influence legislation, and the organization shall not

participate in, or intervene in (including the publishing or

distribution of statements) any political campaign on

behalf of any candidate for public office. Notwithstanding

any other provision of this document, the organization

shall not carry on any other activities not permitted to be

carried on (a) by an organization exempt from federal

income tax under section 501(c)(3) of the Internal Revenue

Code, or corresponding section of any future federal tax

code, or (b) by an organization, contributions of which are

deductible under section 170(c)(2) of the Internal Revenue

4

[*4] Code, or corresponding section of any future federal tax

code.

c. Upon the dissolution of the organization, assets

shall be distributed for one or more exempt purposes

within the meaning of section 501(c)(3) of the Internal

Revenue Code, or corresponding section of any future

federal tax code, or shall be distributed to the federal

government, or to a state or local government, for public

purpose.

In February 2002 the IRS sent petitioner a letter stating that it

would be treated as exempt from federal income tax under section

501(c)(3) and that it would be treated as a public charity, rather than a

private foundation during an advance ruling period. On March 29, 2006,

the IRS classified petitioner as a public charity under section

170(b)(1)(A)(vi) and exempt from federal income tax under section

501(c)(3).

II. Petitioner’s Activities Before Examination

A. Purchase, Renovation, and Leasing of Real Property

Around November 15, 2001, after the date on its Application,

petitioner’s board of directors approved a plan to purchase and renovate

a building (Property) and operate a coffee shop. On June 3, 2002, a coffee

shop, Café Beignet, was created. On July 15, 2002, petitioner purchased

the Property for $90,000. Café Beignet opened at the Property in

November 2003. In 2005 petitioner began planning an addition to the

Property, which was completed around September 7, 2009. In the

subsequent decade petitioner rented the Property to various tenants,

including two pizza shops and an Indian restaurant.

B. Operation of a Coffee Shop

Petitioner has operated Café Beignet since November 2003

selling beignets, as well as coffee, tea, and soft drinks. It also has tables

and chairs for its customers. It is a cash only business. Petitioner did

not reference the operation of Café Beignet in its Application.

C. Milk Donations

Petitioner donated $159.60 worth of powdered milk in 2001 to

Haiti and Ecuador. In a meeting on September 1, 2008, petitioner’s

5

[*5] board of directors discussed “local milk shipments.” The record does

not define “local milk shipments.” Petitioner reported on its 2008 tax

return that it spent $1,100 on milk donations. In 2011 petitioner’s

powdered milk donations ceased.

However, sometime during 2020, after the IRS began its

examination for petitioner’s 2018 tax year, 3 petitioner made some

shipments of powdered milk to various aid organizations that would

distribute the powdered milk in Mexico, Haiti, Peru, or local community

shelters in Scranton, Pennsylvania. The record does not indicate the

quantity or frequency of the shipments.

D. Golf Fundraiser

On September 6, 2010, one of petitioner’s officers, a former

director, suggested at a board of directors meeting that petitioner start

an annual golf fundraiser to be held in September or October each year.

Sometime after that petitioner held annual golf fundraisers, but it is

unclear from the record how petitioner used any funds it raised from the

fundraisers.

E. Petitioner’s Filed Tax Returns

Petitioner filed tax returns for tax years 2008 through 2021 except

for 2017. On its returns it listed three principals: Kimberly Orazzi (who

represents petitioner in the present case), David Silvestrini, and Eugene

Daniel Lucas. For tax year 2008 petitioner filed Form 990, Return of

Organization Exempt From Income Tax, reporting that it was doing

business as Café Beignet. The exempt purpose identified in the 2008

return was to provide “vitamin-fortified powdered milk to children

locally and around the world.”

For each of tax years 2009, 2010, 2012, and 2015, petitioner filed

Form 990–EZ, Short Form Return of Organization Exempt From Income

Tax, which requires reporting limited financial and operational

information. In its 2009 tax return petitioner stated that its primary

exempt purpose was to “distribute vitamin-fortified powdered milk.”

This exempt purpose was not reported in petitioner’s tax returns for

2010, 2012, and 2015 or in the attachments to those returns. In fact,

the section for the organization’s primary exempt purpose was left blank

on those returns. On its Form 990–EZ for tax year 2015 petitioner was

required to report its financials for 2015 and the four preceding years.

3 Petitioner’s tax year is a fiscal year beginning July 1 and ending June 30.

6

[*6] However, on that return petitioner did not report any contributions

or revenue from gross sales less cost of goods sold. Further, on that 2015

tax return petitioner did not report any expenses except for Ms. Orazzi’s

salary, nor did petitioner report receiving any contributions for that tax

year or the four preceding tax years. 4 Nor was there any indication that

petitioner incurred expenses from charitable giving in 2015. The tax

return filed for tax year 2015 is the last tax return petitioner filed in

which it was required to report such information.

For tax years 2011, 2013, 2014, 2016, and 2018 through 2021,

petitioner filed Form 990–N, Electronic Notice (e-Postcard) for Tax-

Exempt Organizations Not Required to File Form 990, which does not

require taxpayers to report financial or operational information, other

than a representation that the taxpayer’s gross receipts were not greater

than $50,000. The only other information required on Form 990–N is

the organization’s name, mailing address, principal officer’s name and

address, and a representation that the organization has not been

terminated. For tax years 2010, 2012, and 2015, petitioner also filed

Forms 990–N, despite filing Forms 990–EZ for those years.

III. Examination for Tax Year 2018

On September 26, 2019, an IRS revenue agent informed

petitioner by letter that it had been selected for audit with respect to its

2018 tax year. The revenue agent scheduled an initial interview and

onsite visit. In the letter the revenue agent also enclosed an Information

Document Request (IDR) requesting background documents and

financial information needed to conduct the audit.

On November 4, 2019, the revenue agent conducted an onsite visit

at the Property, as well as an interview with Ms. Orazzi, petitioner’s

secretary and principal contact. Ms. Orazzi, who was employed by Mr.

Lucas’ law firm, also worked at Café Beignet. During the initial

interview between the revenue agent and Ms. Orazzi, she stated that

petitioner’s mission had changed from distributing powdered milk, but

she did not elaborate.

On November 7, 2019, the revenue agent reviewed petitioner’s

financials for tax year 2018, including cash receipts, expenses, and bank

statements. The revenue agent also reviewed the lease for the addition

4 This conflicts with information reported on petitioner’s 2012 Form 990–EZ,

which included financial information for contributions and expenses for tax years 2011

and 2012 that petitioner did not include on its 2015 tax return.

7

[*7] to the Property, which was then being rented out for $500 per

month. The tenant (a pizzeria) was responsible for maintenance and

utilities. Petitioner’s books and records indicated that the rental income

from the addition to the Property was directly deposited in a bank to pay

off a loan that petitioner had obtained and that was secured by the

Property.

After the revenue agent’s initial interview and a review of

petitioner’s books and records, the revenue agent sent on December 19,

2019, and April 7, 2021, 11 more IDRs to petitioner requesting

additional information and documentation as well as clarification of Ms.

Orazzi’s statements made during the initial interview.

Ms. Orazzi responded to the IDRs, and in response to one request

she acknowledged that petitioner had not conducted charitable

powdered milk distribution during the 2018 tax year, nor had it done so

for several prior years. She wrote that “[t]he foundation was established

to provide vitamin fortified powdered milk to starving children around

the world. The want for this decreased after 2011.” However, Ms.

Orazzi also indicated that petitioner was engaged in other charitable

activities which she identified as running a charity golf tournament,

selling baked goods at Café Beignet, donating proceeds and baked goods

to other charities, and purchasing items from other charities or donating

to other charities. Ms. Orazzi later sent the revenue agent a fax

informing him that during the 2020 calendar year petitioner held

several fundraisers, and it planned to hold its fundraiser golf

tournament in September of that year.

In response to that fax the revenue agent sent additional IDRs to

petitioner. In the IDRs the revenue agent noted that petitioner’s

primary sources of income were rent and the annual golf fundraiser

proceeds.

The revenue agent’s review of petitioner’s tax year 2018 books

and records revealed petitioner’s income and expenses as follows:

Income Amount

Café Sales $1,697

Rental Income 6,000

Golf Fundraiser 13,100

Donations 5,650

Total $26,447

8

[*8] Expenses Amount

Sales Tax $50

Golf Tournament Expenses 2,063

Salaries 3,900

Baking Supplies 876

Phone 264

Insurance 1,500

Loans to Mr. Lucas 9,090 5

Mortgage 6,000

A/C Unit Repairs 2,354

Total $26,097

None of petitioner’s expenses in tax year 2018 were for rice, soy,

or powdered milk.

On April 7, 2021, the revenue agent sent another IDR to

petitioner to request “[a] trial balance or other accounting record that

accurately and completely reports you[r] assets, liabilities, revenues,

expenses and equity for the fiscal year ending June 30, 2018.” Petitioner

did not respond to that IDR or otherwise send the revenue agent the

requested information.

On June 8, 2021, the revenue agent sent petitioner a proposed

adverse determination letter, which explained why the IRS was

proposing to revoke petitioner’s tax-exempt status. The letter concluded

in relevant part as follows:

[Petitioner] is no longer fulfilling its exempt purpose . . . .

[Petitioner] ceased milk distribution activities over the last

several years. It recently began distributing milk in

response to the potential revocation. . . . Its primary

activity, operating a café to raise funds is neither

charitable nor educational. Its primary sources of revenue

are from renting its building addition and its golf

fundraiser. Both activities were performed to raise funds

none of which were used for charitable purposes as

5 This includes $4,572.15 to pay off the People’s Security Loan and $1,462.16

for a “Sales Tax Issue.”

9

[*9] demonstrated by the table of revenue and expenses

displayed above.

The revenue agent and two of petitioner’s representatives, Ms.

Orazzi and Mr. Lucas, continued communicating after the IRS sent the

proposed adverse determination letter. In a letter dated August 6, 2021,

petitioner’s representatives stated that petitioner had been active and

had placed orders for several pounds of powdered milk, including several

orders that were canceled because the powdered milk was out of stock.

They provided the revenue agent with receipts, which included

successful purchases of powdered milk from Amazon on November 4,

2020, of $74.78, November 4, 2020, of $50.62, and January 8, 2021, of

$50.50. The address on the receipts was that of Café Beignet.

In response to that letter, the revenue agent called petitioner’s

representatives and requested current financial documentation for

January 1, 2020, through June 30, 2021, to show that petitioner was

expending funds for its exempt function. Petitioner did not provide the

requested information to the revenue agent.

Subsequently, on February 25, 2022, the IRS issued petitioner a

final adverse determination letter, revoking petitioner’s section

501(c)(3) tax-exempt status effective July 1, 2017. In response petitioner

timely filed its Petition on May 26, 2022, for a declaratory judgment,

disagreeing with the IRS’s adverse determination.

Discussion

I. Scope and Standard of Review

Section 7428(a)(1)(A) confers jurisdiction on the Court to make a

declaration in a case of actual controversy involving a determination by

the Commissioner with respect to the initial qualification or continuing

qualification of an organization as an organization described in section

501(c)(3) which is exempt from tax under section 501(a). An action for

declaratory judgment may be decided by summary judgment. Rules 121,

217(b)(2); see, e.g., Church in Bos. v. Commissioner, 71 T.C. 102, 105

(1978); Sol. Plus, Inc. v. Commissioner, T.C. Memo. 2008-21, 2008 WL

312764, at *6.

The scope of the Court’s review is limited to the administrative

record pursuant to Rule 217(a). The petitioner bears the burden of

establishing that the Commissioner’s determination is erroneous. Rule

142(a); Partners in Charity, Inc. v. Commissioner, 141 T.C. 151, 162

10

[*10] (2013). The scope of the Court’s inquiry is “limited to the propriety

of the reasons given by the Commissioner for denying an organization’s

application for exemption,” rather than a de novo review of the

administrative record. IHC Health Plans, Inc. v. Commissioner, T.C.

Memo. 2001-246, 2001 WL 1103284, at *11, aff’d, 325 F.3d 1188 (10th

Cir. 2003).

Respondent filed the Administrative Record, appropriately

certified as to its genuineness pursuant to Rule 217(b)(1), as defined by

Rule 210(b)(12), which petitioner has not contested. Accordingly, the

evidence the Court will consider consists solely of the Administrative

Record. See Rule 217(b)(1).

II. Summary Judgment

Summary judgment is intended to expedite litigation and avoid

unnecessary and expensive trials. Fla. Peach Corp. v. Commissioner, 90

T.C. 678, 681 (1988). Either party may move for summary judgment

upon all or any part of the legal issues in controversy. Rule 121(a)(1).

The Court may grant summary judgment only if the movant “shows that

there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Rule 121(a)(2).

Respondent, as the moving party, bears the burden of proving

that no genuine dispute exists as to any material fact and that

respondent is entitled to judgment as a matter of law. See FPL Grp.,

Inc. & Subs. v. Commissioner, 115 T.C. 554, 559 (2000); Bond v.

Commissioner, 100 T.C. 32, 36 (1993); Naftel v. Commissioner, 85 T.C.

527, 529 (1985). In deciding whether to grant summary judgment, the

factual materials and inferences drawn from them must be considered

in the light most favorable to the nonmoving party. FPL Grp., Inc., 115

T.C. at 559; Bond, 100 T.C. at 36; Naftel, 85 T.C. at 529. The party

opposing summary judgment must set forth specific facts which show

that a question of genuine material fact exists and may not rely merely

on allegations or denials in the pleadings. Rule 121(d); Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986); Grant Creek Water Works, Ltd. v.

Commissioner, 91 T.C. 322, 325 (1988); King v. Commissioner, 87 T.C.

1213, 1217 (1986).

III. Section 501(c)(3) Tax-Exempt Status

The flush text of section 7428(a) provides in pertinent part that

“a determination with respect to a continuing qualification . . . includes

any revocation of or other change in a qualification.”

11

[*11] A. General Rules Regarding Exempt Status

Section 501(a) exempts from federal income taxation

organizations described in section 501(c). Among the organizations so

described are those set forth in section 501(c)(3), which are:

[c]orporations . . . organized and operated exclusively for

religious, charitable, scientific, testing for public safety,

literary, or educational purposes, or to foster national or

international amateur sports competition . . . , or for the

prevention of cruelty to children or animals, no part of the

net earnings of which inures to the benefit of any private

shareholder or individual . . . .

In order to be exempt under section 501(c)(3), an organization

must be both organized exclusively for one or more of the exempt

purposes specified in the section, known as the organizational test, and

operated exclusively for such purposes, known as the operational test.

See Treas. Reg. § 1.501(c)(3)-1(a)(1). Failure to satisfy either test

forecloses a section 501(c)(3) exemption. Treas. Reg. § 1.501(c)(3)-

1(a)(1). In the instant case the IRS’s basis for revoking petitioner’s

exempt status is its determination that petitioner was not organized and

operated exclusively for an exempt purpose. However, respondent’s

Motion focuses on petitioner’s failure of the operational test. 6

B. Failure of the Operational Test

In the application of the operational test, “exclusively” does not

mean “solely” or “absolutely without exception.” Nationalist Movement

v. Commissioner, 102 T.C. 558, 576 (1994) (quoting Church in Bos., 71

T.C. at 107), aff’d per curiam, 37 F.3d 216 (5th Cir. 1994); see also

Copyright Clearance Ctr., Inc. v. Commissioner, 79 T.C. 793, 803–04

(1982). Nonetheless, the presence of a single nonexempt purpose, if

substantial, precludes exempt status regardless of the number or

importance of truly exempt purposes. Better Bus. Bureau of Wash., D.C.,

Inc. v. United States, 326 U.S. 279, 283 (1945); Redlands Surgical Servs.

v. Commissioner, 113 T.C. 47, 71–72 (1999), aff’d per curiam, 242 F.3d

904 (9th Cir. 2001); Nationalist Movement, 102 T.C. at 576; Am.

Campaign Acad. v. Commissioner, 92 T.C. 1053, 1065 (1989).

6 Further, petitioner did not file a response to the Motion and has not

challenged the revocation as to the organizational test.

12

[*12] With respect to the operational test:

An organization will be regarded as operated exclusively

for one or more exempt purposes only if it engages

primarily in activities which accomplish one or more of

such exempt purposes specified in section 501(c)(3). An

organization will not be so regarded if more than an

insubstantial part of its activities is not in furtherance of

an exempt purpose.

Treas. Reg. § 1.501(c)(3)-1(c)(1).

The operational test also reinforces the express dictates of section

501(c)(3) in that an entity is deemed not to operate exclusively for

exempt purposes if net earnings are distributed or otherwise inure to

the benefit of private individuals. Treas. Reg. § 1.501(c)(3)-1(c)(2).

Additionally, although an organization may be engaged in only a single

activity directed toward multiple purposes, both exempt and

nonexempt, failure to satisfy the operational test will result if any

nonexempt purpose is substantial. Redlands Surgical Servs., 113 T.C.

at 71; Copyright Clearance Ctr., 79 T.C. at 803–04.

The IRS determined that petitioner did not operate exclusively

for exempt purposes. In the determination letter, the IRS concluded

that petitioner was “no longer fulfilling its exempt purpose” because it

“ceased milk distribution activities over the last several years.” The

letter further noted that petitioner only “recently began distributing

milk in response to the potential revocation.” The IRS found that

petitioner’s primary activity was operating a coffee shop, Café Beignet,

and petitioner’s primary sources of revenue were from renting the

Property and its addition, as well as its golf fundraiser. The IRS

concluded that the funds raised by the above activities were not used for

charitable purposes, as demonstrated by petitioner’s tax returns and

financial documentation.

In this regard the presence of a single substantial purpose that is

not described in section 501(c)(3) precludes exemption from tax under

section 501(a) regardless of the number or the importance of the

purposes that are present and described in section 501(c)(3). See Better

Bus. Bureau, 326 U.S. at 283.

“Under the operational test, the purpose towards which an

organization’s activities are directed, and not the nature of the activities

themselves, is ultimately dispositive of the organization’s right to be

13

[*13] classified as a section 501(c)(3) organization exempt from tax

under section 501(a).” B.S.W. Grp., Inc. v. Commissioner, 70 T.C. 352,

356–57 (1978). As the Court has noted, “[e]ven in a commercial, profit-

motivated context, such activities may be wholesome and commendable;

but they will not support tax-exempt status unless they are undertaken

to further an exempt purpose.” Partners in Charity, Inc., 141 T.C.

at 164.

C. Petitioner’s Lack of Objections to Summary Judgment

Rule 121(d) sets forth that “[t]he nonmovant must respond,

setting forth specific facts . . . to show that there is a genuine dispute of

fact for trial.” Further, “any response in opposition to a motion for

summary judgment must include a statement of facts with references to

the administrative record.” Rule 121(j). Where a party fails to properly

address an assertion of fact, the Court may (1) “consider the fact

undisputed for purposes of the motion” and (2) “grant summary

judgment if the motion and supporting materials (including the facts

considered undisputed) show that the movant is entitled to it.” Rule

121(f). “Disputes over facts that are not outcome determinative do not

preclude the entry of summary judgment.” Carpenter v. Commissioner,

T.C. Memo. 2012-1, 2012 WL 10798, at *4 (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)), supplemented by T.C. Memo.

2013-172.

Despite the Court’s directing petitioner to file an objection to

respondent’s Motion, petitioner did not do so. Petitioner has not offered

anything in opposition to respondent’s conclusion that petitioner did not

operate exclusively for exempt purposes other than in the Petition, in

which petitioner asserted that “[t]he Milk Saving Starving Children

foundation has received substantial contributions to show it is in

compliance with the requirements of being 501(c)(3) charitable

foundation (sic),” and that “[t]he Milk Saving Starving Children

foundation is in compliance with being a 501(c) charitable foundation as

it is a publicly (sic) supported organization.” While the record does

support that petitioner received contributions, it does not show that

petitioner dispensed those contributions in support of its exempt

purpose. For tax year 2018 petitioner’s books and records show that it

did not make any payments or donations in support of its exempt

purpose, despite receiving income of $26,447. Petitioner claimed to

donate to other charitable causes throughout the course of its operation,

but the record does not support this claim, and in tax year 2018 it

reported no such donations.

14

[*14] The Administrative Record shows that, as respondent argued in

his Motion, while petitioner may have donated and participated in some

charitable endeavors, it was not operated exclusively for exempt

purposes. In addition to any charitable activities it undertook,

petitioner engaged extensively, and seemingly primarily, in commercial

activities, namely (1) purchasing and renovating the Property, as well

as renting out the addition to that Property to unrelated commercial

businesses, and (2) using the Property to operate a coffee shop, Café

Beignet. Petitioner has not argued or demonstrated that its operation

of its commercial activities furthered its exempt purposes. Accordingly,

by operating these commercial activities not in furtherance of its exempt

purpose, petitioner is disqualified from its tax-exempt status under the

above-referenced operational test.

IV. Conclusion

Petitioner has failed to adequately respond to respondent’s

Motion, and the Court could enter a decision against it for that reason

alone. See Rule 121(d). However, the Court has considered respondent’s

Motion on its merits. A review of the Administrative Record shows that

petitioner did not operate exclusively for one or more exempt purposes

within the meaning of section 501(c)(3). Because the Court finds that

petitioner failed the operational test, it need not address whether

petitioner was organized for a charitable purpose. Petitioner has not

met its burden of proving that respondent’s determination to revoke its

tax-exempt status effective July 1, 2017, was erroneous.

Accordingly, for the reasons set forth above, the Court concludes

that respondent is entitled to summary judgment as a matter of law.

To reflect the foregoing,

An appropriate order and decision will be entered.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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