Alumni Association of the University of Oregon, Inc. - Page 19

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               In deciding whether income a taxpayer receives is royalty              
          income, we may consider the taxpayer's financial risks and                  
          rewards, including whether the taxpayer has a net profits and               
          gross profits interest.  See Sierra Club, Inc. v. Commissioner,             
          supra at 333.                                                               
               In Sierra Club, the taxpayer did not have a net profits                
          interest in the royalty payments because its income was based on            
          a percentage of the total charges.  Id. at 333.  Instead, it had            
          a gross profits interest.  A gross profits interest is the right            
          to share in the gross profits without bearing the risk of loss.             
          Id.  Gross profits are the difference between sales and the cost            
          of goods sold.  Black's Law Dictionary 703 (6th ed. 1990).                  
               Petitioner had a gross profits interest in the credit card             
          program, not a net profits interest.  Petitioner received a fixed           
          percentage of all of the authorized cash purchases and advances,            
          and a fixed amount for new accounts, regardless of whether USNB             
          had losses from the affinity credit card program.  Here, as in              
          Sierra Club, no provision was made to periodically compute net              
          income or loss from the credit card program.  The fact that                 
          petitioner did not have a net profits interest supports                     
          petitioner's contention that its income from the program was a              
          royalty.                                                                    
               5.   Petitioner's Desire To Make Money From the Affinity               
                    Credit Card Program                                               







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