Common Cause - Page 18




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          transaction, the mailer's rental payment compensates petitioner             
          for the mailer's use of petitioner's list and, also, compensates            
          Names, Triplex, and the list brokers for their participation in             
          the transaction.  Certain of these activities exploit and protect           
          the intangible (i.e., the list).  We have held that the owner of            
          an intangible may engage in certain activities to exploit and               
          protect the intangible which do not change the nature of the                
          payment received.  See Wm. J. Lemp Brewing Co. v. Commissioner,             
          18 T.C. 586, 596 (1952) (payment to the owner of the intangible             
          was a royalty even though the owner reserved the right to                   
          supervise the advertising, marketing, and quality of the product            
          which was to bear the trademarked name); see also Mississippi               
          State Univ. Alumni, Inc. v. Commissioner, T.C. Memo. 1997-397               
          (review of marketing material and endorsement of an affinity                
          credit card program bearing the name of an exempt organization              
          were not services provided to the card issuing company).  To hold           
          otherwise, it seems to us, "would require us to hold that any               
          activity on the part of the owner of intangible property to                 
          obtain a royalty, renders the payment for the use of that right             
          UBTI and not a royalty."  Sierra Club, Inc. v. Commissioner, 86             
          F.3d at 1536.  Accordingly, in the instant case, we carefully               


          4(...continued)                                                             
          and Sierra Club and that the courts therefore did not have before           
          them.                                                                       




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