Common Cause - Page 17




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          512(b)(2), meant only those earned passively.  We also held,                
          however, that an issue of fact existed regarding whether any part           
          of the list rental transaction price, specifically the fees for             
          special selections, media, and shipping, was payment for goods              
          and services.                                                               
               Before appeal, the parties in Sierra Club settled the issue            
          of whether any part of the list rental payment was for goods or             
          substantial services provided in connection with the rental                 
          transactions.  See Sierra Club, Inc. v. Commissioner, 103 T.C. at           
          310.  In affirming our decision as to the royalty issue, the                
          Court of Appeals for the Ninth Circuit held that the term                   
          "royalty", as it is used in section 512(b)(2), "is by definition            
          'passive' and thus cannot include compensation for services                 
          rendered by the owner of property."  Sierra Club Inc. v.                    
          Commissioner, 86 F.3d at 1532.  Additionally, the court reasoned            
          that, because the exempt organization did not itself provide any            
          services to the mailer, the entire amount it actually received              
          was a royalty for UBIT purposes.  See id. at 1535-1536.                     
          Royalty-Related Activity or Services                                        
               In the instant case, we must decide whether any part of the            
          mailing list rental payments constitutes compensation to                    
          petitioner for goods or services.4  In each mailing list rental             


          4    This is the same issue that the parties settled in DAV II              
                                                             (continued...)           




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