PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LEAGUE OF POSTMASTERS

OF THE UNITED STATES,

Petitioner-Appellant,

v.

No. 95-2646

COMMISSIONER OF THE INTERNAL

REVENUE SERVICE,

Respondent-Appellee.

AMERICAN FARM BUREAU FEDERATION,

Amicus Curiae.

Appeal from the United States Tax Court.

(Tax Ct. No. 93-8032)

Argued: April 3, 1996

Decided: June 14, 1996

Before ERVIN, Circuit Judge, LAY, Senior Circuit Judge of the

United States Court of Appeals for the Eighth Circuit, sitting by

designation, and TRAXLER, United States District Judge for the

District of South Carolina, sitting by designation.

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Affirmed by published opinion. Senior Judge Lay wrote the opinion,

in which Judge Ervin and Judge Traxler joined.

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COUNSEL

ARGUED: James vanRoden Springer, DICKSTEIN, SHAPIRO &

MORIN, L.L.P., Washington, D.C., for Appellant. Edward T. Perel-
muter, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: M. J. Mintz,

Lawrence D. Garr, DICKSTEIN, SHAPIRO & MORIN, L.L.P.,

Washington, D.C., for Appellant. Loretta C. Argrett, Assistant Attorney General, Gary R. Allen, Richard Farber, Tax Division, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee. John J. Rademacher, General Counsel, AMERICAN

FARM BUREAU FEDERATION, Park Ridge, Illinois; Jerry L.

Oppenheimer, Evan M. Tager, Donald M. Falk, Michael I. Gilman,

MAYER, BROWN & PLATT, Washington, D.C., for Amicus Curiae.

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OPINION

LAY, Senior Circuit Judge:

The National League of Postmasters ("the League") is a tax-exempt

labor organization under 26 U.S.C. § 501(c)(5). The Commissioner

determined deficiencies in the League's federal income taxes from

1987 to 1990 on the basis that dues and service fees the League

received in relation to certain members, known as"League Benefit

Members" ("LBMs"), were not "substantially related" to any of the

League's tax-exempt purposes. See 26 U.S.C.§ 513(a). The Tax

Court upheld the Commissioner. We affirm.

Factual Background

In August of 1987, the League formed a new class of membership

called "League Benefit Members" ("LBMs"). The League maintains

that the dues and service charges related to LBMs, unlike a former

class of membership, "Limited Benefit Members," are tax-exempt.1

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1 Historically, the League's membership was limited to active and

retired postmasters. In 1978, the League added a new membership category, "Limited Benefit Members," open to other active and retired federal employees. The sole benefit to Limited Benefit Members was

participation in the League's health insurance plan, the Postmaster Benefits Plan, under the Federal Employees Health Benefits Program. This

category of membership raised a substantial amount of revenue for the

 2
From 1987 to 1990, LBMs received several benefits, including

access to the League's health insurance plan; a quarterly newsletter;

certain employment-related group legal services (if the member did

not otherwise have access to binding arbitration); and the right to participate in the League's travel, credit card, eyewear, and long-term

care insurance programs. At the same time, the League expanded the

focus of its legislative and administrative lobbying from issues related

solely to postal services to include issues concerning "the overall

working conditions and retirement benefits of all Members." J.A. 77-

78. In addition, the League provided that the new class of LBMs, who

accounted for roughly half of the League's total membership, could

elect one member to the League's executive board, otherwise composed of nine active postmasters.2 The elected LBM representative

was also the only LBM delegate out of five hundred total delegates

to the League's annual national convention.3

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League through dues and service fees on the health insurance plan. In the

mid-1980s, the Commissioner challenged the exempt status of labor

organizations' provision of health insurance to persons who were not

otherwise members of the labor organization. See, e.g., American Postal

Workers Union v. United States, 925 F.2d 480 (D.C. Cir. 1991) (upholding Commissioner). At that time, the League conceded the taxability of

the dues and service fees from its Limited Benefit Members and paid its

tax deficiency. The League also abolished the category of Limited Benefit Members in favor of "League Benefit Members" who received an

expanded package of benefits.

2 To accommodate the new LBM board member, the League increased

the size of the executive board from nine to ten members and the number

of votes required to transact business from six to seven.

3 The new class of LBMs were not eligible to participate in the

League's state branches or its affiliated retiree organizations, through

which national delegates were elected and social and professional programs for postmasters were implemented. They also did not receive the

Postmasters Advocate, the League's monthly magazine, as a benefit of

membership. Furthermore, they were unable to utilize the League's "adverse action counseling," which trained postmasters in resolving

personnel-related disputes. The League explains that active postmaster

members received these benefits because they paid substantially higher

dues than LBMs. The League, however, is not a collective bargaining

agent for postmasters or any of its other classes of members.

 3
Before the Tax Court, the League stipulated that its activities with

respect to the LBMs constituted a "trade or business" and were "regularly carried on" during the years in question. See 26 U.S.C.

§ 512(a)(1). The Commissioner stipulated that income from the

League's activities with respect to the other members, essentially

active and retired postmasters, was tax exempt. Thus, the only issue

presented in this case is whether the League conducted its activities

with respect to LBMs in a manner "substantially related" to the

League's tax-exempt purposes such that the income derived from

those activities is tax exempt. See 26 U.S.C. § 513(a).

Discussion

An otherwise tax-exempt organization must pay tax on"unrelated

business taxable income." 26 U.S.C. § 511(a)(1). Unrelated business

taxable income is an organization's gross income, less allowable

deductions, produced from (1) any trade or business (2) regularly carried on by the organization (3) which is not substantially related

(aside from generating revenue) to the organization's tax-exempt purposes. See 26 U.S.C. §§ 512(a)(1), 513(a); United States v. American

Bar Endowment, 477 U.S. 105, 109-10 (1986); United States v. American College of Physicians, 475 U.S. 834, 838-39 (1986).4 This tax is

designed to restrain unfair competition by otherwise tax-exempt organizations engaged in profit-making activities without unnecessarily

discouraging benevolent enterprise. Id. at 837-38.

The League's tax-exempt purposes are defined in part by regulation, which provides that a tax-exempt labor organization must have

as its object "the betterment of the conditions" of those engaged in

labor. See 26 C.F.R. § 1.501(c)(5)-1(a)(2); Morganbesser v. United

States, 984 F.2d 560, 562 (2d Cir. 1993). In addition, as the District

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4 Under the regulations, the substantial relationship test is whether

income-generating activities have a substantial"causal relationship to the

achievement of exempt purposes" or "contribute importantly to the

accomplishment of those purposes." 26 C.F.R.§ 1.513-1(d)(2). The regulations further provide that "[w]hether activities productive of gross

income contribute importantly to the accomplishment of any purpose for

which an organization is granted exemption depends in each case upon

the facts and circumstances involved." Id. (emphasis added).

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of Columbia Circuit did in American Postal Workers Union v. United

States, 925 F.2d 480, 482 (D.C. Cir. 1991), we also look to the

League's articles of incorporation, which define the League's purposes as follows:

Section 1. Provide a vehicle through which members may

assist one another in matters connected with their career

employment in the United States Postal Service;

Section 2. Advance the proficiency of personnel in providing postal service promptly, reliably and efficiently to individuals and businesses in all areas of the nation;

Section 3. Consult with the management of the United

States Postal Service on policies which concern the welfare,

happiness and morale of employees;

Section 4. Improve the conditions under which individual

members work, having concern for salaries, hours of

employment, working environment, adjustment of grievances and labor disputes;

Section 5. Cooperate with other groups and levels of

postal management in the achievement of common goals;

Section 6. Encourage contact among members in social,

operational and professional relationships; and

Section 7. Engage in any other activity not inconsistent

with the laws of the District of Columbia.

J.A. 67-68. The League contends that Section 4 of its statement of

purpose--"[i]mprove the conditions under which individual members

work, having concern for salaries, hours of employment, working

environment, adjustment of grievances and labor disputes"--is sufficiently broad to cover non-postal federal employees. We find, however, that the League's articles, as the League's name suggests, reflect

an overriding purpose to improve the working conditions of postmasters, and, to a lesser extent, other postal employees. The statement of

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purpose fails to provide for the betterment of conditions for all federal employees. It is patently clear that the articles as a whole focus

on postmasters and other postal employees. Cf. American Postal

Workers, 925 F.2d at 482. Under basic principles of construction, the

general words in Section 4 apply only to those of the same class

(postal workers) as set forth in the other sections. However, assuming

that Section 4 can be read to encompass all federal employee members, and that it thus constitutes a valid tax-exempt purpose, we nonetheless find the League's activities in regard to LBMs not

substantially related to any such purpose.5

First, we deem it highly dubious that the League's generalized provision of health insurance benefits to federal employee members,

including retired federal employees, is substantially related to improving the working conditions of LBMs. The Commissioner has allowed

tax-exempt treatment for the provision of health insurance to a labor

organization's members. See Rev. Rul. 62-17, 1962-1 C.B. 87, 87-88.

In the present case, however, the Tax Court found the provision of

health insurance was not substantially related to the League's exempt

purposes because the League marketed the health insurance in a commercial manner, much like competitor for-profit health plans, and the

health plan was available to retired federal employees who had not

been members of the League prior to retirement. In such circumstances, the Tax Court found the health benefits were not substantially

related to improving the working conditions of LBMs.

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5 The League argued to the Tax Court that its activities in regard to

LBMs were also substantially related to its sixth stated purpose: "Encourage contact among members in social, operational and professional

relationships[.]" The Tax Court found, however, that the League "did not

attempt to encourage contact, whether for social, operational, or professional purposes, among or with LBMs during the years at issue." This

finding was based in large part on the fact that LBMs were excluded

from the League's state chapters and were not encouraged to attend the

League's national convention. The League does not press this argument

on appeal, and we find, as did the Tax Court, that Section 6 of the

League's statement of purpose provides no basis for sustaining the

League's exempt status for its income derived from the dues and service

charges related to LBMs.

 6
Moreover, it is now clear that the "provision of insurance benefits

to persons who are not members in any other sense cannot be substantially related to a [labor organization's] tax-exempt purposes."

American Postal Workers, 925 F.2d at 483. Accord National Ass'n of

Postal Supervisors v. United States, 944 F.2d 859, 861 (Fed. Cir.

1991). In distinguishing American Postal Workers and Postal

Supervisors, the League contends the overall bundle of benefits provided to LBMs--group legal services, communications, lobbying, and

voting rights--made them bona fide League members. As such, the

League argues, their dues should be tax-exempt. We disagree.

Although it is possible that LBMs joined the League for reasons

other than to obtain access to the League's health insurance plan, the

League failed to show how many LBMs opted not to participate in the

League's health plan. In light of the history of LBMs, as the offspring

of the Limited Benefit Members whose sole benefit was the League's

health plan, see note 1, supra, it was incumbent upon the League to

show that LBMs acted as bona fide League members in some manner

more substantial than as health benefit purchasers. Cf. Helvering v.

Taylor, 293 U.S. 507, 515 (1935) (burden of proof on petitioner to

show invalidity of Commissioner's determination). Without such a

showing by the League, the Commissioner could reasonably suspect

that the League was evading the Commissioner's earlier decision to

tax the dues and service fees of so-called "members" whose only

membership benefit was health insurance. The League's failure to

show the number of LBMs who did not obtain the League's health

benefits belies the notion that federal employees joined the League in

order to obtain the League's other benefits or out of affinity for the

postmasters.

Moreover, we think the Tax Court properly found the other benefits in the League's bundle of benefits were not substantially related

to the League's tax-exempt purposes of improving the working conditions of the League's members.6 First, the Tax Court found that

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6 The Commissioner acknowledges that the League could have established that a portion of the dues of LBMs was substantially related to a

tax-exempt purpose, such as the legal services contract, and thereby

immunized that portion of the dues from taxation. Appellee's Br. at 24.

We agree with the Commissioner that the League failed to meet its burden of proof in this regard, however, and thus we do not reverse the Tax

Court on this basis.

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although some LBMs obtained assistance in employment-related disputes through the group legal services contract, it was of no value to

many LBMs who either were retired, and thus had no need for

employment-related legal assistance, or were covered by binding arbitration agreements, and thus were ineligible for the League's group

legal services. Second, the Tax Court found the League's newsletter

for LBMs was used primarily as an advertisement for the health and

other commercial benefits available to LBMs, rather than as a means

to communicate important labor news to federal employee members.

Cf. Illinois Ass'n of Professional Ins. Agents v. Commissioner, 801

F.2d 987, 995 (7th Cir. 1986) (characterizing materials as taxable

advertisements rather than tax-exempt educational material). Third,

the Tax Court found any lobbying on issues of concern to federal

employees was either incidental to its lobbying efforts on behalf of

postmasters or otherwise too generalized to constitute a substantial

relationship to the working conditions of LBMs. See American Postal

Workers, 925 F.2d at 482-83.7 Fourth, the Tax Court found the limited

voting rights provided to the LBMs were effectively diluted by other

changes in voting which maintained the power of postmasters to control the League's agenda. See note 2, supra. Upon our review of the

record, we find no error in the Tax Court's findings.

The League argues, however, that the Tax Court erred by examining whether its activities actually improved the working conditions of

LBMs in some tangible, quantitative manner rather than whether its

activities were designed to improve the working conditions of LBMs

or were consistent with such a purpose. Under the regulations, a tax-

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7 The League argues generalized lobbying on behalf of federal employees is nonetheless directed toward the improvement of the working conditions of LBMs and thus should support the tax-exempt status of the

dues of LBMs. It is true that federal employees could join a labor organization to promote such generalized lobbying efforts. On this record, however, there is no showing that such lobbying was substantially related to

the dues paid by LBMs or a substantial reason for League membership

on the part of LBMs. Moreover, the League could have readily established a class of members to support the League's lobbying efforts without the attendant health and other commercial benefits. Under these

circumstances, generalized lobbying cannot support the tax-exempt status of the dues of LBMs.

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payer must show that an organization's income-generating activities

have a substantial "causal relationship to the achievement of exempt

purposes" or "contribute importantly to the accomplishment of those

purposes." 26 C.F.R. § 1.513-1(d)(2) (emphasis added). Thus, to the

extent that the Tax Court looked for evidence of actual improvement

in the working conditions of LBMs, we think such an inquiry was

proper. As we read the Tax Court's opinion, however, the Tax Court

examined whether the League's conduct of its activities in regard to

LBMs evinced a primary intention on the League's part of raising

revenue, making its income taxable, or of improving the working conditions of LBMs, making its income tax exempt. See American College of Physicians, 475 U.S. at 848-49; Independent Ins. Agents v.

Commissioner, 998 F.2d 898, 902 (11th Cir. 1993). Because some of

the benefits, such as the group legal services contract, had no potential to improve the working conditions of many LBMs, the Tax Court

properly concluded the League failed to show it conducted its activities in regard to LBMs in a manner substantially related to its taxexempt purposes.

Under these circumstances, the Tax Court properly found the dues

of LBMs and related service charges not substantially related to any

of the League's tax-exempt purposes, and we affirm the Tax Court's

decision.

AFFIRMED

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