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This entry was published on 2014-09-22
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SECTION 406
Private foundation, as defined in the United States internal revenue code of 1954: provisions included in the certificate of incorporation
Not-for-Profit Corporation (NPC) CHAPTER 35, ARTICLE 4
§ 406. Private foundation, as defined in the United States internal

revenue code of 1954: provisions included in the certificate of

incorporation.

(a) The following provisions are hereby included in the certificate of
incorporation of every domestic corporation, heretofore or hereafter
formed, to which this chapter applies in whole or in part, and which is
a "private foundation" as defined in section 509 of the United States
internal revenue code of 1954 ("code"):

(1) The corporation shall distribute such amounts for each taxable
year at such time and in such manner as not to subject the corporation
to tax on undistributed income under section 4942 of the code.

(2) The corporation shall not engage in any act or self-dealing which
is subject to tax under section 4941 of the code.

(3) The corporation shall not retain any excess business holdings
which are subject to tax under section 4943 of the code.

(4) The corporation shall not make any investments in such manner as
to subject the corporation to tax under section 4944 of the code.

(5) The corporation shall not make any taxable expenditures which are
subject to tax under section 4945 of the code.
Except as provided in paragraph (b), this paragraph applies
notwithstanding any other provision of the certificate of incorporation
or any direction in a gift instrument.

(b) Paragraph (a) shall not apply to the extent that it conflicts with
any mandatory direction in a gift instrument executed prior to the
effective date of this section unless such conflicting direction is
removed as impracticable under article eight of the estates, powers and
trusts law or in any other manner provided by law. The absence of a
specific provision in the gift instrument for the current use of the
principal of the fund, or the presence in such an instrument of a
provision, as to the principal of a fund, limited to the principal's
being held, invested and reinvested, is not such a conflicting mandatory
direction.

(b-1) A domestic, not-for-profit corporation that is a "private
foundation" as defined in section 509 of the code and that is required
by section 6104(d) of the code to make available for public inspection
its annual return shall publish notice of the availability of such
return for inspection. Such notice shall be published, not later than
the day prescribed for filing such annual return (determined with regard
to any extension of time for filing), in a newspaper designated by the
clerk of the county in which the principal office of the private
foundation is located, having general circulation in that county. When
such county is located within a city with a population of one million or
more, such designation shall be as though such notice were a notice of
judicial proceedings. The notice shall state that the annual return of
the private foundation is available at its principal office for
inspection during regular business hours by any citizen who requests it
within one hundred eighty days after the date of such publication, and
shall state the address and the telephone number of the private
foundation's principal office and the name of its principal manager. A
copy or notice published in a newspaper other than the newspaper or
newspapers designated by the county clerk shall not be deemed to be one
of the publications required by this paragraph.

(c) All references in this section to sections of the code shall be to
such sections as amended from time to time, or to corresponding
provisions of subsequent internal revenue laws.

(d) Nothing in this section shall impair the rights and powers of the
courts or the attorney-general of this state.

(e) For purposes of this section, the term gift instrument shall have
the meaning set forth in section 551 (Definitions).