1985 Tax Ct. Memo LEXIS 164 | Tax Ct. | 1985
MEMORANDUM FINDINGS OF FACT AND OPINION
KORNER,
Tax year ended | Amount |
August 31, 1979 | $2,072 |
August 31, 1980 | 2,931 |
The only issue for decision is whether petitioner, a private social club exempt from income tax under section 501(c)(7), 1 can deduct in the years in issue its excess losses from certain sales of food and beverages to nonmembers in computing its unrelated business taxable income.
1985 Tax Ct. Memo LEXIS 164">*167 FINDINGS OF FACT
Almost all of the facts have been stipulated, and such facts together with accompanying exhibits are incorporated herein by this reference.
At the time its petition was filed, petitioner's principal place of business was in New York City, New York.
Petitioner was organized as a private club in 1903, and is incorporated under the laws of the State of New York. An individual may become a member of petitioner by invitation only, and petitioner is not open to the general public.
Petitioner's facilities consist of a five-story clubhouse, one bar, three dining rooms, ten bedrooms, one kitchen, two pantries and an office. Petitioner provides the following services: (1) Breakfast, luncheon and dinner; (2) overnight accommodations; (3) reservation and message switchboard; and (4) private dinner parties.
Petitioner is currently, and was during the years in issue, an organization described in section 501(c)(7) as a social club "organized for pleasure, recreation, and other nonprofitable purposes * * *." Petitioner was granted exempt status under section 501(a) in June of 1942, and maintained such status during the years in issue. For each such year, petitioner1985 Tax Ct. Memo LEXIS 164">*168 timely filed Forms 990-T, exempt organization business income tax returns.
During its fiscal years ended August 31, 1979, and August 31, 1980, petitioner received from two sources unrelated business taxable income within the meaning of section 512(a)(3)(A), viz, investments and sales of food and beverages to nonmembers. Petitioner incurred net losses from the nonmember food and beverage activities during such fiscal years in the respective amounts of $38,477 and $44,383.
Whenever the club facilities were used by nonmembers, the sponsoring member was present. Petitioner's management makes no distinction between member and nonmember functions, and only makes such classifications when forms filed by its members are reviewed at the end of each fiscal year.
Petitioner charges the same price for food and beverages sold to members and nonmembers. Revenues from such sales are insufficient to recover the full costs thereof, and petitioner did not have the intention that they would be. The percentages of petitioner's gross receipts attributable to nonmember business during its fiscal years 1979 and 1980, were 5.99 percent and 6.3 percent, respectively.
An allocable portion of petitioner's1985 Tax Ct. Memo LEXIS 164">*169 overhead costs was properly attributable to and directly connected with the generation of nonmember income. Petitioner has consistently deducted such an allocable portion of overhead from nonmember income for purposes of computing unrelated business taxable income. For its taxable years ending August 31, 1973, through 1983, inclusive, petitioner reported losses for tax purposes from the sale of food and beverages to nonmembers, after subtracting both direct and indirect expenses allocable to those activities.
Petitioner's management conducted its overall activities with the intention that total receipts from all revenue sources would exceed total expenditures.
For the periods ending August 31, 1979, and August 31, 1980, petitioner had net investment income in the respective amounts of $13,110 and $18,841.
In computing its unrelated business taxable income for its 1979 and 1980 tax years, petitioner deducted losses incurred from sales of food and beverages to nonmembers from its investment income, as follows:
Nonmember food and beverage activities | Investment | Unrelated | |||
income | business | ||||
Year | Gross receipts | Cost of goods | Losses | taxable | |
sold and | income | ||||
operations | |||||
1979 | $48,677 | $87,154 | $ (38,477) | $13,110 | $ (25,867) |
1980 | 55,064 | 99,447 | (44,383) | 18,841 | (25,542) |
1985 Tax Ct. Memo LEXIS 164">*170 OPINION
Petitioner is a tax-exempt social club pursuant to sections 501(a) and 501(c)(7). 2 Pursuant to section 511(a), an income tax at general corporate rates is imposed on the "unrelated business taxable income" of any such organization. The phrase "unrelated business taxable income" is defined generally in section 512(a)(1), as follows:
(1) GENERAL RULE.--
For taxable years beginning before January 1, 1970, social1985 Tax Ct. Memo LEXIS 164">*171 clubs were not subject to the tax on unrelated business income under section 511. Thus, unless its exemption was revoked, such clubs were not taxable on their income. See
For taxable years beginning after December 31, 1969, however, the Tax Reform Act of 1969, Pub. L. 91-172, 83 Stat. 487, subjected social clubs to a tax on unrelated business income. This provision resulted from a proposal by the Treasury Department, which explained the proposal, in part, as follows:
Thus, under the proposal, all income, other than that from members in exchange for exempt function facilities, would be included in gross income, whether or not the activities generating the income were sufficient to meet the requirements of a "trade or business regularly carried on" generally applicable under the unrelated business income tax. Income from an investment [footnote omitted] would be subject to the tax whether or not the activities engaged in by the social club in generating that income were sufficient to meet the "trade or business" test of the unrelated business1985 Tax Ct. Memo LEXIS 164">*172 income tax.
* * *
The computation of income subject to the tax would be similar in most respects to the computation presently applicable under the unrelated business income tax in general. However, consistent with the elimination of the "trade or business regularly carried on" tests, deductions would be allowable if directly connected with
In accordance with the foregoing proposals, section 512(a)(3)(A) was added by the 1969 Act, and provides for a special rule applicable, inter alia, to section 501(c)(7) social clubs, as follows:
(A) GENERAL RULE.--In the case of an organization described in paragraph (7) * * * of section 501(c), the term "unrelated business taxable income" means the gross income (excluding any exempt function income),
In the instant case, petitioner reported food and beverage expenses from nonmember activities in its 1979 and 1980 tax years in the respective amounts of $87,154 and $99,447, against which it offset food and beverage income from such activities in those years in the respective amounts of $48,677 and $55,064. For each such year, petitioner then applied the resulting losses from nonmember food and beverage activities, in the respective amounts of $38,477 and $44,383, against certain investment income, yielding unrelated business losses of $25,367 and $25,542, respectively.
Respondent disallowed the foregoing nonmember food and beverage expenses, but only to the extent they exceeded nonmember food and beverage income (i.e., to the extent they offset investment income). In support of this determination, respondent relies solely on the following two alternative theories: (1) The subject expenses were not "deductions allowed by this chapter" within the meaning of section 512(a)(3)(A), 1985 Tax Ct. Memo LEXIS 164">*174 since the only provision of chapter 1 under which they could be deducted is section 162(a), and they are not deductible under that section because, viewing petitioner's nonmember sales of food and beverages apart from its other activities, such sales were not conducted with a profit motive and did not constitute a trade or business; 3 and (2) even if petitioner's nonmember sales of food and beverages constituted a trade or business, the excess losses from such activity should not reduce
1985 Tax Ct. Memo LEXIS 164">*175 In
The second issue presented in
In the instant case, petitioner similarly seeks to net the excess expenses from one activity (i.e., nonmember food and beverage) against the income from another activity (i.e., investments). No direct nexus between such activities having been demonstrated by petitioner on this record, 5 we hold that
1985 Tax Ct. Memo LEXIS 164">*177 As in
1985 Tax Ct. Memo LEXIS 164">*178 Petitioner argues that the foregoing result contravenes the intent of section 277 that a club should not pay less tax as a taxable corporation than it would as an exempt social club. It is sufficient to note that section 277 has no application to the instant case, which involves a concededly tax-exempt social club under section 501(c)(7), and that our holding comports fully with the purpose of the provision in issue, section 512(a)(3).
Other arguments raised by petitioner go essentially to respondent's first alternative argument,
To reflect the foregoing,
Footnotes
1. All statutory references are to the Internal Revenue Code of 1954, as in effect in the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure, except as otherwise noted.↩
2. Pursuant to sec. 501(c)(7), the following are exempt from taxation under sec. 501(a):
Clubs organized for pleasure, recreation, and other nonprofitable purposes, substantially all of the activities of which are for such purposes and no part of the net earnings of which inures to the benefit of any private shareholder.↩
3. In light of this primary theory for disallowance, it is anomalous that respondent limited his disallowance to the excess of expenses over income attributable to nonmember food and beverage activities, and the record fails to disclose any explanation for such limitation.↩
4. Without expressing any opinion as to its merits, we note that this question has been decided adversely to the taxpayer in the
(N.D. Ohio 1984) (it is not clear whether respondent limited his disallowance to the excess of nonmember food and beverage expenses over income in that case). On the other hand, we further note that, while not directly confronted with the issue, this Court apparently accepted the notion that the expenses of a concededly non-trade or business activity (staging of an invasion and parade by a sec. 501(c)(7) organization) could offset gross income as long as they were "directly connected with the production" of the income within the meaning of sec. 512(a)(3)(A).Cleveland Athletic Club v. United States, 588 F. Supp. 1305">588 F. Supp. 1305 , 80 T.C. 755">765↩ (1983). See also Technical Explanation of Treasury Tax Reform Proposals, Hearings on the Subject of Tax Reform before the Comm. on Ways and Means, 91st Cong., 1st Sess., part 14, 5050 (April 22, 1969) (as excerpted in the text).Ye Mystic Krewe of Gasparilla v. Commissioner, 80 T.C. 755">80 T.C. 7555. Indeed, while petitioner makes allegations in its petition and on brief concerning the nature of the nonmember food and beverage activities in issue, there is nothing in the record to support such allegations, leaving the nature of such activities unexplained.↩
6. See also
(1971), affd. per curiamAdirondack League Club v. Commissioner, 55 T.C. 796">55 T.C. 796458 F.2d 506">458 F.2d 506↩ (2d Cir. 1972).7. In so holding, we offer no opinion as to the possibility of petitioner's carrying over or back its net operating losses from nonmember food and beverage activities, since the issue has not been presented by either party. Cf. secs. 512 (a)(3)(A) and 512(b)(6);
sec. 1.512(b)-1(e), Income Tax Regs.↩ We note, however, that in view of the stipulated fact that petitioner incurred nonmember food and beverage losses net of direct and indirect expenses allocable to such activities for its taxable years 1973 through 1983, inclusive, it seems unlikely that it could have utilized any such loss carryovers or carrybacks to which it might have been entitled.8. In discussing the application of the unrelated business tax to social clubs, the Ways and Means Committee report provided, in part:
The bill also imposes a tax on
investment income of organizations which are exempt on the grounds of mutuality or common membership.Social clubs, for example, are operated for the benefit of members and any profit derived from rendering the services to members is used by the club for the benefit of the members. Therefore, where a social clubhas income from interest, dividends, rents, royalties, etc., this income reduces the members' costs below the actual cost of providing the personal facilities made available by the organization. Because of this, the bill would tax the social clubs and these other membership organizations on all income other than that derived from rendering services to the members. This income would be treated and taxed as business income. [H. Rept. 91-413 (Part 1) (1969),3 C.B. 200">1969-3 C.B. 200 , 231; emphasis added.]The Senate Finance Committee report also stated:
Since the tax exemption for social clubs and other groups is designed to allow individuals to join together to provide recreational or social facilities or other benefits on a mutual basis, without tax consequences, the tax exemption operates properly only when the sources of income of the organization are limited to receipts from the membership. Under such circumstances, the individual is in substantially the same position as if he had spent his income on pleasure or recreation (or other benefits) without the intervening separate organization. However, where the organization receives income from sources outside the membership,
such as income from investments * * *, upon which no tax is paid, the membership receives a benefit not contemplated by the exemption in that untaxed dollars can be used by the organization to provide pleasure or recreation (or other benefits to its membership. * * * The extension of the exemption to suchinvestment income is, therefore, a distortion of its purpose. [S. Rept. 91-552 (1969),3 C.B. 423">1969-3 C.B. 423↩ , 469-470; emphasis added.] See also Technical Explanation of Treasury Tax Reform Proposals, (as excerpted in the text).