If your organization wishes to obtain recognition of exemption from
federal income tax as a cemetery company or a corporation chartered
solely for the purpose of the disposal of human bodies by burial or
cremation, it should file an application on Form 1024. For the
procedure to follow to file an application, see chapter 1.
A nonprofit mutual cemetery company that seeks
recognition of exemption should submit evidence with its application
that it is owned and operated exclusively for the benefit of its lot
owners who hold lots for bona fide burial purposes and not for
purposes of resale. A mutual cemetery company that also engages in
charitable activities, such as the burial of paupers, will be regarded
as operating within this standard. The fact that a mutual cemetery
company limits its membership to a particular class of individuals,
such as members of a family, will not affect its status as mutual so
long as all the other requirements of section 501(c)(13) are met.
If your organization is a nonprofit corporation chartered solely
for the purpose of the disposal of human bodies by burial or
cremation, you should show that it is not permitted by its charter to
engage in any business not necessarily incident to that purpose.
Operating a mortuary is not permitted. However, selling monuments,
markers, vaults, and flowers solely for use in the cemetery is
permitted if the profits from these sales are used to maintain the
cemetery as a whole.
How income may be used.
You should show that your organization's earnings are or will be
used only in one or more of the following ways.
- To pay the ordinary and necessary expenses of operating,
maintaining, and improving the cemetery or crematorium.
- To buy cemetery property.
- To create a fund that will provide a source of income for
the perpetual care of the cemetery or a reasonable reserve for any
ordinary or necessary purpose.
No part of the net earnings of your organization may benefit any
private shareholder or individual.
Ordinary and necessary expenses in connection with the operation,
management, maintenance, and improvement of the cemetery are
permitted, as are reasonable fees for the services of a manager.
Buying cemetery property.
Payments may be made to amortize debt incurred to buy land, but may
not be in the nature of profit distributions. You must show the method
used to finance the purchase of the cemetery property and that the
purchase price of the land at the time of its sale to the cemetery was
Except for holders of preferred stock (discussed later), no person
may have any interest in the net earnings of a tax-exempt cemetery
company or crematorium. Therefore, if property is transferred to the
organization in exchange for an interest in the organization's net
earnings, the organization will not be exempt so long as that interest
An equity interest in the organization is an interest in the net
earnings of the organization. However, an interest in the organization
that is not an equity interest may still be an interest in the
organization's net earnings. For example, a bond issued by a cemetery
company that provides for a fixed rate of interest and also provides
for additional interest payments based on the income of the
organization is considered an interest in the net earnings of the
organization. Similarly, a convertible debt obligation issued after
July 7, 1975, is considered an interest in the net earnings of the
Perpetual care organization.
A perpetual care organization, including, for example, a trust
organized to receive, maintain, and administer funds that it receives
from a nonprofit tax-exempt cemetery pursuant to state law and
contracts, may apply for recognition of exemption on Form 1024, even
though it does not own the land used for burial. However, the income
from these funds must be devoted exclusively to the perpetual care and
maintenance of the nonprofit cemetery as a whole. Also, no part of the
net earnings may benefit any private shareholder or individual.
In addition, a perpetual care organization not operated for profit,
but established as a civic enterprise to maintain and administer
funds, the income of which is devoted exclusively to the perpetual
care and maintenance of an abandoned cemetery as a whole, may qualify
Care of individual plots.
When funds are received by a cemetery company for the perpetual
care of an individual lot or crypt, a trust is created that is subject
to federal income tax. Any trust income that is used or permanently
set aside for the care, maintenance, or beautification of a particular
family burial lot or mausoleum crypt is not deductible in computing
the trust's taxable income.
Common and preferred stock.
A cemetery company that issues common stock may qualify
for exemption only if no dividends may be paid. The payment of
dividends must be legally prohibited either by the corporation's
charter or by applicable state law.
Generally, a cemetery company or crematorium is not exempt if it
issues preferred stock. However, it can still be exempt if
the preferred stock was issued before November 28, 1978, or was issued
after that date under a written plan adopted before that date. The
adoption of the plan must be shown by the acts of the responsible
officers and appear on the official records of the organization.
The preferred stock issued either before November 28, 1978, or
under a plan adopted before that date, must meet all the following
- The preferred stock entitles the holders to dividends at a
fixed rate that is not more than the greater of the legal rate of
interest in the state of incorporation or 8% a year on the value of
the consideration for which the stock was issued.
- The organization's articles of incorporation require:
- That the preferred stock be retired at par as rapidly as
funds become available from operations, and
- That all funds not required for the payment of dividends on
or for the retirement of preferred stock be used by the company for
the care and improvement of the cemetery property.
Tax treatment of donations.
Donations to exempt cemetery companies, corporations chartered
solely for human burial purposes, and perpetual care funds (operated
in connection with such exempt organizations) are deductible as
charitable contributions on the donor's federal income tax return.
However, a donor may not deduct a contribution made for the perpetual
care of a particular lot or crypt. Payments made to a cemetery company
or corporation as part of the purchase price of a burial lot or crypt,
whether irrevocably dedicated to the perpetual care of the cemetery as
a whole or earmarked for the care of a particular lot, are also not