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computer services. Triplex provides similar services to both
nonprofit and commercial entities on the same terms.
Petitioner retains Craver, Mathews, Smith, & Company, Inc.
(CMS), to assist it in raising funds and building its master and
rental lists. Petitioner first contracted with CMS for list
management services during the 1980's. Petitioner renewed its
contract with CMS on December 17, 1990, October 7, 1992, and
February 4, 1993.2 As petitioner's list manager, CMS determines
the overall management strategy and supervises all list rental
transactions involving petitioner's rental list.
CMS retains the services of other list managers to handle
the details of the list rental transactions. Before August 1993,
CMS retained the services of Names in the News (Names), a
professional list manager and list broker that regularly handles
both nonprofit and commercial mailing lists. On July 23, 1993,
CMS communicated with petitioner regarding its choice of American
List Counsel, Inc. (ALC), as list manager for future list rental
transactions. After August 1993, CMS retained the services of
2 Petitioner renewed its contract with CMS sometime between
August 1993 and February 1995. The contract provides that it is
effective beginning August 1993, which is within the period in
issue in the instant case. Petitioner contends, however, that
the terms of the contract were not agreed upon until February
1995, which is after the period in issue in the instant case, and
petitioner argues that the terms of this contract therefore are
not relevant to the instant case. We find that the date the
contract became binding is irrelevant because after August 1993
the rental transactions involving petitioner's rental list were
actually arranged in accordance with the terms of the contract.
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