RENSSELAER POLYTECHNIC INSTITUTE, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
No. 188, Docket 83-4101
United States Court of Appeals, Second Circuit.
April 11, 1984
732 F.2d 1058
George C. Shattuck, Syracuse, N.Y. (Joseph P. Kubarek, Bond, Schoeneck & King, Syracuse, N.Y.), for petitioner-appellee.
Sheldon E. Steinbach, Washington, D.C., for amicus curiae American Council on Educ.
Christine Topping Milliken, Washington, D.C., for amicus curiae Nat. Institute of Independent Colleges and Universities.
Dorothy K. Robinson, New Haven, Conn. (Hughes, Hubbard & Reed, New York City, of counsel), for amicus curiae Yale University.
Before MANSFIELD, PIERCE and PRATT, Circuit Judges.
The issue before us is not only one of first impression; it is also of considerable financial significance to many of our colleges and universities. When a tax-exempt organization uses one of its facilities, as in this case a fieldhouse, for both tax-exempt purposes and for the production of unrelated business income, what portion of its indirect expenses such as depreciation may it deduct from its unrelated business income pursuant to
The facts are undisputed. Rensselaer Polytechnic Institute (RPI) is a non-profit educational organization entitled to tax-exempt status under
The second group, “variable expenses“, are those which vary in proportion to actual use of the fieldhouse, but which cannot be identified with particular events. They were originally in dispute before the tax court, but neither side has appealed that part of the decision below which (a) found the total variable expenses to be $197,210; and (b) allocated them on the basis of actual use, as claimed by RPI, rather than total availability, as claimed by the commissioner.
This appeal involves the third group, “fixed expenses“, which do not vary in proportion to actual use of the facility. The amounts of fixed expenses incurred with respect to the fieldhouse were stipulated to be:
| Salaries and fringe benefits | $ 59,415 |
| Depreciation | 29,397 |
| Repairs and Replacements | 14,031 |
| Operating Expenditures | 1,356 |
| $104,199 |
Narrowly stated, the issue is how these fixed expenses should be allocated between RPI‘s dual uses: the exempt student use and the taxable commercial use. RPI contends it is entitled to allocate the fixed expenses on the basis of relative times of actual use. Thus, in computing that portion of its deductible expenses, RPI multiplies the total amount of fixed expenses by a fraction, whose numerator is the total number of hours the fieldhouse was used for commercial events, and whose denominator is the total number of hours the fieldhouse was used for all activities and events—student and commercial combined.
The commissioner argues that the allocation of fixed expenses must be made not on the basis of times of actual use, but on the basis of total time available for use. Thus, he contends the denominator of the fraction should be the total number of hours in the taxable year. In practical terms, the difference between the two methods of allocation amounts to $9,259 in taxes.
Below, the tax court agreed with RPI‘s method of allocating on the basis of actual use, finding it to be “reasonable” within the meaning of
It has been the consistent policy of this nation to exempt from income taxes a corporation, like RPI, that is “organized and operated exclusively for * * * educational purposes * * *“.
Recognizing, however, the unfair competitive advantage that freedom from income taxation could accord tax-exempt institutions that entered the world of commerce, congress, in 1950, extended the income tax to the “unrelated business income” of certain tax-exempt institutions, including educational corporations.
With this historical background in mind, we turn to the applicable statute and regulations.
(c) Dual use of facilities or personnel. Where facilities are used both to carry on exempt activities and to conduct unrelated trade or business activities, expenses, depreciation and similar items attributable to such facilities (as, for example, items of overhead), shall be allocated between the two uses on a reasonable basis. Similarly, where personnel are used both to carry on exempt activities and to conduct unrelated trade or business activities, expenses and similar items attributable to such personnel (as, for example, items of salary) shall be allocated between the two uses on a reasonable basis. The portion of any such items so allocated to the unrelated trade or business activity is proximately and primarily related to that business activity, and shall be allowable as a deduction in computing unrelated business taxable income in the manner and to the extent permitted by section 162, section 167 or other relevant provisions of the Code.
Thus, when allocated “on a reasonable basis“, expenses attributable to such facilities or personnel—which expressly include such “indirect expenses” as depreciation and overhead—are by definition “proximately and primarily related” to the business. They are therefore “directly connected with” the unrelated business activity and expressly made deductible by the regulation.
Under this regulation, therefore, the critical question is whether the method of allocation adopted by RPI was “reasonable“. The tax court found that it was, and, giving due regard to its expertise in this area, ABKCO Industries, Inc. v. Commissioner, 482 F.2d 150, 155 (3d Cir. 1973), we see no error in that conclusion. Apportioning indirect expenses such as depreciation on the basis of the actual hours the facility was used for both exempt and taxable purposes sensibly distributes the cost
Indeed, the commissioner does not claim that RPI‘s allocation method is factually unreasonable, but instead contends solely that the method is not “reasonable“, because by permitting depreciation during “idle time“, when the fieldhouse is not being used at all, it contravenes the statutory requirement that deductible expenses be “directly connected with” RPI‘s unrelated business activities. By advancing this argument, however, the commissioner ignores his own definition of the concept “directly connected with” included in
For an expense to be “directly connected with” an activity, the commissioner argues that it must be one that would not have been incurred in the absence of the activity. But whether or not the fieldhouse is actually put to any business use, depreciation of the facility continues. We cannot accept the commissioner‘s argument, therefore, because it would in effect eliminate entirely all deductions for indirect expenses such as depreciation, a result that is not required by statute and that is directly contrary to the regulation.
The commissioner relies on Pittsburgh Press Club v. United States, 579 F.2d 751 (3d Cir. 1978), to support his argument that indirect expenses that would have been incurred regardless of business use may not properly be deducted from unrelated business income. That case, however, arose under
Furthermore, to apply the statute as the commissioner interprets it would not fulfill the congressional purpose of placing private enterprise on an equal level with competing businesses run by tax-exempt institutions, but would place RPI at a competitive disadvantage. Unlike business enterprises, it would be unable to allocate any of its indirect expenses to those periods when the fieldhouse was not being used at all.
Some concern has been expressed that RPI‘s allocation method would provide an incentive for educational institutions to abuse their tax-exempt status. The argument is a red herring. Use of educational facilities for producing unrelated business income is not tax abuse; on the contrary, as we have pointed out above, such non-exempt activities have been consistently permitted and, since 1950, expressly approved by congress. Moreover, should the trustees of a particular tax-exempt educational institution so pervert its operations that the institution no longer “engages primarily in activities which accomplish * * * [its exempt purposes]“,
The judgment appealed from is affirmed.
I respectfully dissent.
Rensselaer Polytechnic Institute (“RPI“) is a tax-exempt institution only because it has dedicated itself and its property in perpetuity to “charitable” and “educational purposes.”
In my view such expenses are not “directly connected” with the institution‘s commercial business activities within the meaning of
In my view the fundamental error underlying the majority‘s decision is its assumption that tax-exempt institutions are governed for tax deduction purposes by the same standards as those governing taxable businesses. That assumption conflicts with legislative intent, economic reality, and the express wording of the pertinent statute and regulations. When Congress in 1950 passed legislation subjecting tax-exempt organizations to income tax on unrelated business income, it was concerned both with removing the unfair competitive advantage enjoyed by tax-exempt institutions and with assuring that the unrelated business income would produce a fair amount of revenue for the public fisc.2 However, it was confronted with inherent differences between a regular taxable business and a non-profit university engaged
In the case of a commercial business devoted solely to making a profit, its entire operation is subject to a tax on its income. Regardless how it chooses to allocate its business expenses between divisions, the net income from all divisions is taxable. The IRS therefore has no quarrel with any “reasonable” allocation of deductible expenses between branches of the operation. The tax-exempt university, on the other hand, is fundamentally different in that one of its “divisions“—the educational function—is not subject to taxation. The university will therefore always have an incentive to minimize the allocation of expenses attributed to the educational function, and correspondingly to maximize the deduction for unrelated business activity. This incentive, which is not present in the ordinary business setting, requires a stricter standard of deductibility for tax-exempt organizations than for purely profit-seeking firms. The government cannot, in the case of an educational institution engaged in unrelated commercial business activity, afford to take the same relaxed approach as with wholly-taxable businesses and to accept any allocation the taxpayer may deem “reasonable.”
Thus, the majority achieves parity only in the most superficial sense. The identical rule of deductibility is imposed, but it is imposed on organizations that have different characteristics and are therefore affected differently by the same rule. To whatever extent Congress sought to place wholly taxable and exempt organizations on the same footing, it was concerned not with such technical legal tests but with the real after-tax situations of the two different types of organization. Yet the majority‘s approach, which claims to provide equal treatment, actually leaves the tax-exempt organizations with the very advantage that the majority claims Congress was trying to eliminate.
That Congress adopted a narrower test of deductibility for the tax-exempt organization is clearly reflected in the statute.
If there were any doubt after reading the language of the statute that disparate standards have been prescribed by Congress, one needs only to look at the pertinent regulations. The regulation governing business deductions for the profit-seeking corporation,
§ 1.512(a)-1 Definition.
(a) In general. Except as otherwise provided ... section 512(a)(1) defines ‘unrelated business taxable income’ as the gross income derived from any unrelated trade or business regularly carried on, less those deductions allowed by chapter 1 of the Code which are directly connected with the carrying on of such trade or business.... To be deductible in computing unrelated business taxable income, therefore, expenses, depreciation, and similar items not only must qualify as deductions allowed by chapter 1 of the Code, but also must be directly connected with the carrying on of unrelated trade or business ... to be ‘directly connected with’ the conduct of unrelated business for the purposes of section 512, an item of deduction must have proximate and primary relationship to the carrying on of that business.
(Emphasis added).
The provision in
The majority‘s reliance on Tax Court home-office, dual-use cases is clearly misplaced. It is true that the home-office situation is somewhat comparable to that of a tax-exempt institution engaged in taxable unrelated business activities. When a home is used as an office there is an incentive, as with tax-exempt institutions partially engaged in profit-making business, to allocate as large a percentage of all expenses as possible to the taxable activity. However, the analogy is seriously flawed because the homeowner is free to use his home for any purpose he chooses, while the university, in order to gain the tax-exempt treatment it enjoys, must dedicate its facilities to exempt purposes. Thus, while it might reasonably be argued that a home office‘s “idle time” is equally available for exempt and non-exempt purposes, and thus that depreciation accruing during that time should be divided in proportion to the periods used for business and living respectively, it is clearly not reasonable to make the same assumption with respect to a university‘s “idle time.” If that idle time were equally available for unrelated business activity, the university would not have obtained its exemption in the first place.
Even if the home-office deduction were a useful point of comparison, there is another serious problem with the majority‘s position. Although the Tax Court has taken the position that depreciation of a home-office can be allocated on the basis of actual use rather than on total hours in the day, the Ninth Circuit has reached the opposite conclusion and has reversed the Tax Court on this issue. See Gino v. Commissioner, 538 F.2d 833 (9th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 587 (1976); see also, Lewis v. Commissioner, 560 F.2d 973, 978 (9th Cir.1977). Under these circumstances the Tax Court decisions on this issue can hardly be viewed as authoritative.
In short, Pittsburgh Press is not distinguishable, and the Commissioner would have been justified in denying RPI any depreciation deduction at all. That he did not do so, and instead adopted regulations which permit the college to take a limited deduction, ought not be grounds for this court to undermine a statutory and regulatory scheme that makes far more legal and economic sense than the superficially appealing solution adopted by the majority. Sympathetic as I am to the financial needs of hard-pressed private educational institutions seeking to cope with ever-mounting costs, Congress remains the only body that can change the law governing allocation of expenses between exempt and non-exempt uses.
For these reasons, I would reverse the Tax Court‘s decision.