INSTANCE WHERE A NONPROFIT CORPORATION IS ACTING AS A COOPERATIVE, IN WHICH THE EXCESS REVENUES SUBJECT TO REFUND WOULD NOT BE CONSIDERED "PROFITS" OR "GAINS" BUT WOULD BE MORE PROPERLY VIEWED AS OVERCHARGES WHICH COULD, THEREFORE, BE REBATED AS REFUNDS RATHER THAN AS PROFITS OR PECUNIARY GAIN. BUT OKLAHOMA COURTS HAVE NOT YET HAD THE OPPORTUNITY TO ADDRESS THIS QUESTION, AND ANY NONPROFIT CORPORATION WHICH ACTED TO DISTRIBUTE EXCESS REVENUES AS REBATES UNDER THE AUTHORITY OF AN ATTORNEY GENERAL'S OPINION WOULD RISK THE LOSS OF NONPROFIT STATUS, WITH ALL OF THE TAX CONSEQUENCES THAT WOULD ENTAIL, UPON THE OVERTURNING OF THAT OPINION BY ANY DISTRICT COURT, OR SIMPLY BY A FINDING THAT IN A PARTICULAR INSTANCE, THE DISTRIBUTED MONEY WAS PROHIBITED PECUNIARY GAIN RATHER THAN A REBATE.
ULTIMATELY, ANY DETERMINATION BY THE ATTORNEY GENERAL THAT OKLAHOMA LAW DOES NOT ABSOLUTELY PROHIBIT NONPROFIT CORPORATE REBATES TO THE CORPORATE MEMBERS COULD NOT DETERMINE THE POTENTIAL TAX CONSEQUENCES OF SUCH REBATES NOR COULD IT GUARANTEE THAT A REBATE WILL BE PERMISSIBLE IN ANY SPECIFIC CASE. THE QUESTION WOULD REMAIN IN EACH INSTANCE IF THE PAYMENTS MADE BY THE NONPROFIT CORPORATION TO ITS MEMBERS WERE TRULY REBATES OR WHETHER, UNDER THE SPECIFIC CIRCUMSTANCES, THEY WOULD CONSTITUTE "PROFITS" OR "PECUNIARY GAIN" AS PROHIBITED IN 18 O.S. 1006(7) (1990). IN ESSENCE, THIS INABILITY TO ADDRESS SPECIFIC FACTUAL DETERMINANTS WOULD ROB AN ATTORNEY GENERAL'S OPINION ON THIS QUESTION OF ANY UTILITARIAN VALUE.
IN THREE SEPARATE OPINION CONFERENCES, THE LAWYERS FROM THIS OFFICE HAVE STRUGGLED TO FIND A WAY TO CRAFT AN OPINION WHICH STRIKES A BALANCE BETWEEN THE POSSIBILITY THAT DISTRIBUTION OF REBATES TO THE MEMBERS OF A NONPROFIT CORPORATION MAY SOMETIMES BE PERMITTED AND PROPER AND THE REALIZATION THAT OKLAHOMA LAW CLEARLY PROHIBITS THE DISTRIBUTION OF PECUNIARY GAIN BY NONPROFIT CORPORATIONS TO THEIR MEMBERS; WE HAVE BEEN UNABLE TO CRAFT SUCH AN OPINION. OUR CONCLUSION IS THAT THE LEGISLATURE COULD MORE EFFECTIVELY STRIKE THIS BALANCE. SPECIFIC LEGISLATION ALREADY EXISTS ALLOWING NONPROFIT CORPORATIONS FORMED FOR THE PURPOSES OF MARKETING AGRICULTURAL AND HORTICULTURAL PRODUCTS AND TO PROVIDE ELECTRICITY TO RURAL AREAS TO REBATE EXCESS REVENUES TO ITS MEMBERS. OTHER, SIMILARLY NARROW PROVISIONS COULD BE ENACTED TO PERMIT NONPROFIT CORPORATIONS FORMED FOR OTHER SPECIFIC PURPOSES TO REBATE EXCESS REVENUES.
(REBECCA RHODES)