10-33-07. Private foundations - Provisions considered contained in articles

10-33-07. Private foundations - Provisions considered contained in articles

1. The articles of incorporation of a corporation that is a private foundation as defined in

section 509(a) of the Internal Revenue Code and an instrument governing the use,

retention, or disposition by the corporation of its income or property must contain the

provisions contained in this section. If the articles and instrument do not contain these

provisions, they are considered to have incorporated the language in subdivisions a

through e with the same effect as though the language was set forth verbatim. Except

as provided in subsection 2, these provisions govern the corporation as to the use,

retention, and disposition of its income and property regardless of provisions of the

articles or instrument or other law of this state to the contrary:

a. The corporation shall distribute for each of its taxable years amounts at least

sufficient to avoid liability for the tax imposed by section 4942(a) of the Internal

Revenue Code;

b. The corporation may not engage in an act of "self-dealing" as defined in section

4941(d) of the Internal Revenue Code that would give rise to liability for the tax

imposed by section 4941(a) of the Internal Revenue Code;

c. The corporation may not retain "excess business holdings" as defined in section

4943(c) of the Internal Revenue Code that would give rise to liability for the tax

imposed by section 4943(a) of the Internal Revenue Code;

d. The corporation may not make investments that would jeopardize the carrying out

of the exempt purposes of the corporation, within the meaning of section 4944 of

the Internal Revenue Code, so as to give rise to liability for the tax imposed by

section 4944(a) of the Internal Revenue Code; and

e. The corporation may not make a "taxable expenditure" as defined in section

4945(d) of the Internal Revenue Code that would give rise to liability for the tax

imposed by section 4945(a) of the Internal Revenue Code.

2. Subsection 1 does not apply to a corporation if a court of competent jurisdiction

determines that the application would be contrary to the terms of an instrument

described in subsection 1 and that the instrument may not properly be changed to

conform to subsection 1.

3. A reference in subsection 1 to a particular section of the Internal Revenue Code

includes the corresponding provision of a future United States internal revenue law.

4. This section applies to all corporations that could be governed by this chapter,

notwithstanding section 10-33-02.

5. This section does not impair the rights and powers of the attorney general or the

courts of this state with respect to a corporation.