Diane L. Fahey


In the last twenty years, the number of nonprofit organizations has exploded; there are more than 1.2 million organizations registered with the Internal Revenue Service. Donations and government grants have decreased, while at the same time, nonprofits are facing increasing demands on their services. As a result, nonprofit organizations have been forced to devise new strategies for acquiring funds. Some nonprofit organizations have resorted to renting their mailing lists to businesses and other nonprofit organizations and have licensed their names and logos to be displayed on affinity credit cards offered by banks to consumers. Nonprofit organizations have argued that these funds are not subject to the unrelated business income tax and consider them to be exempt as royalties. The Internal Revenue Service, and initially the courts, disagreed. Revenue from these two sources should continue to be classified as royalty income. These royalties operate in a fashion analogous to traditional mineral rights royalties, which are exempt from the unrelated business income tax. Mineral rights royalties are divided into a taxable working interest, which bears the risks and benefits of the venture, and the exempt investment interest held by the nonprofit. These new royalties can be divided the same way into these two interests. In fact, it can be argued that this approach could be applied to other income items to determine if they should be exempt from the unrelated business income tax. Further, mailing list rentals and affinity credit card licenses do not contain even the potential to harm competition. However, taxing this income may well hinder certain nonprofits from functioning and discriminate in favor of older, more moneyed organizations.


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