dissenting: I must respectfully dissent from the majority’s holding that the petitioner is a feeder organization under section 502 and therefore not exempt under section 501(a). In the Revenue Act of 1950, Congress added section 502, along with the tax on unrelated business income provided by sections 511 to 513.1 The Treasury Department described their purpose as follows:
Under the recommendation, if such activities are conducted by the exempt organization itself, the exemption of the organization would not be disturbed, but such business income would be segregated and subjected to tax. If a separate organization conducts those activities for the exempt institution, the entire income of the separate organization would be taxed.[2]
The feeder provision and the tax on unrelated business income are therefore complementary provisions dealing with business activities not in themselves related (aside from the production of income for exempt functions) to a charitable purpose. These complementary provisions provide a two-pronged approach: if the unrelated business is conducted by an otherwise exempt organization, then it is subject to the tax on unrelated business income provided by sections 511-513; if the exempt organization spins off the unrelated business into a separate entity, that entity is taxable. In either case, the activity must be related (aside from the production of income) to charitable purposes or it will be subject to tax. But if the activity is related to a charitable endeavor, it will not be subject to the unrelated business income tax when conducted by charity, and will not lose this preferred tax status by being spun off.
Applying these principles to the case before us, it can easily be seen that petitioner is not a feeder organization as contemplated by section 502 and the legislative history thereunder. The majority tells us that in petitioner’s operation, “it uses bactericides which provide a longer shelf life for the laundry, freer from bacteria than laundry serviced by commercial laundries.” We are also told that “petitioner’s type of bacteria-free service [provided on a 24-hour basis, 6 days per week] is presently unobtainable from the existing commercial laundries in the area where it operates.” Possibly for this reason, and also because doing their own laundry saves money, the majority notes that the Federal Government provided Hill-Burton funds to commence operations of the laundry.
It is hard to see how anything could be more related to hospital activities than washing the sheets and pillowcases used on the beds. This type of service was unobtainable commercially and its importance was recognized by the Federal Government in making Hill-Burton funds available. How can they be anything other than exempt activities?
It is quite plain that when the hospital performs these functions itself, they constitute an exempt activity. Since section 502 and the unrelated business income tax are opposite sides of the same coin, it is also plain that section 502 is inapplicable. Whether the hospital washes the sheets itself, or spins that duty off to a separate organization, is of no significance. Section 502 and the unrelated business income tax are complementary. If the activity is related in itself (aside from the production of income) to hospital functions when conducted by the hospital, it does not become a nonexempt activity simply because it is spun off.3
Indeed, as the majority notes, the issue the Court decides has been extensively litigated and the results have been uniformly at odds with the majority holding. Northern Cal. Central Services, Inc. v. United States, 219 Ct. Cl. 60, 591 F.2d 620 (1979); Metropolitan Detroit Area Hospital v. United States, 445 F. Supp. 857 (E.D. Mich. 1978), on appeal (6th Cir., June 7, 1978); HCSC-Laundry v. United States, 473 F. Supp. 250 (E.D. Pa. 1979); Community Hospital Services, Inc. v. United States, — F. Supp. - (E.D. Mich. 1979, 43 AFTR 2d 79-934, 79-1 USTC par. 9301), on appeal (6th Cir., May 29, 1979); Hospital Central Services Assn. v. United States, an unreported case (W.D. Wash. 1977, 40 AFTR 2d 77-5646, 77-2 USTC par. 9601), on appeal (9th Cir., Oct. 6, 1977); Chart, Inc. v. United States, 491 F. Supp. 10 (D. D.C. 1979, 45 AFTR 2d 80-555, 79-2 USTC par. 88-724); United Hospital Services, Inc. v. United States, 384 F. Supp. 776 (S.D. Ind. 1974). I would follow this extensive precedent in the case before the Court.
The majority notes that “were we not constrained by the weight of the legislative history, we might be inclined to hold that petitioner is organized primarily for an exempt purpose and not a commercial one.” The legislative history to which the majority refers is not that associated with the enactment of section 502 in the Revenue Act of 1950, the section they interpret as dispositive of the case. Rather, the majority refers to a series of legislative proposals considering the exemption of hospital laundries, and concludes that since Congress declined to specifically exempt hospital laundries, it approved of respondent’s interpretation of existing law. Since the legislative history to which the majority refers involves amendments added by the Senate to various bills that were either not accepted by the House or accepted only in part,4 I am unpersuaded that the reenactment doctrine has any validity as applied to the instant case. I reach this conclusion for three reasons.
First, it is the legislative history of sections 502 and 511-513, added by the Revenue Act of 1950, that we are concerned with, and what Congress intended in enacting that law has not been changed by subsequent events. The House of Representatives did not consider the various amendments to subsequent legislation to which the majority refers. That the Senate may have added amendments at different times that were deleted or that were accepted by the House conferees only in part does not mean that both Houses of Congress considered the respondent’s interpretation and intended to approve it. At best, it can be said that the law was left in its existing state, with any ambiguities to be resolved by the courts, and to perform this task we should examine the Revenue Act of 1950.
Second, the impetus for exempting hospital-affiliated organizations undoubtedly came from the hospitals themselves, in an attempt to avoid the uncertainty of litigation arising under the 1950 amendments. That these organizations were unsuccessful in their attempts to have the law amended to specifically include them and obviate the necessity of extensive litigation does not mean that Congress intended to approve of respondent’s interpretation of the law. Applying the reenactment doctrine in this context means that whenever someone unsuccessfully attempts to have the law clarified or amended, the existing law will be read to require the opposite result from that provided by the proposed amendment, even though only one House of Congress considered the amendment. There seems no basis in logic or experience for such a principle of statutory construction, and it would have a disruptive impact on the legislative process.
Third, as Judge Tannenwald points out in his dissenting opinion, Congress has been aware throughout its legislative consideration of the earlier decision in the Court of Claims (Hospital Bureau of Standards & Supplies, Inc. v. United States, 141 Ct. Cl. 91 (1958)) which construed respondent’s regulation as not precluding exemption of a hospital-affiliated organization providing hospital services.
Finally, I do not believe that regulation section 1.502-l(b) precludes exemption of petitioner. That regulation recognizes that a subsidiary performing activities that are an integral part of the exempt activities of the parent will be entitled to exemption. It is clear under the regulations and the examples that a large hospital can service its laundry through a subsidiary. In the case of a large hospital, its size may permit the laundry to operate at a point of maximum efficiency, providing an indispensable service at the lowest possible cost. However, in the case of four small hospitals, it is economically efficient for them to have their own laundry only if they combine their operation. When they do so, their situation is both economically and in terms of its impact on competition, indistinguishable from one large hospital doing the same thing. The four small hospitals may have the same total number of beds as the large hospital, thereby requiring the same magnitude of laundry services. Given their size, it may be more imperative that they cooperate in this manner to hold down costs than it would be for the larger hospital.
It may be true, as the example in the regulations states, that if the subsidiary laundry organization was conducted by only one of the four hospitals, it would be an unrelated business activity. However, it is not “carried on by any one of the tax-exempt organizations,” but is carried on by all of them as equal owners of the subsidiary that provides services that the majority notes are otherwise not available commercially. To the extent that the respondent has not simply misinterpreted his own example in the regulations, I believe the example creates an invidious distinction that cannot survive analysis, and I would invalidate that portion of the regulations. See United Telecommunications, Inc. v. Commissioner, 65 T.C. 278 (1975), supplemental opinion 67 T.C. 760 (1977), affd. 589 F.2d 1383 (10th Cir. 1978), cert. denied 442 U.S. 917 (1979).
Featherston, Tannenwald, and Hall, JJ., agree with this dissenting opinion.Sec. 301, Revenue Act of 1950, ch. 994, 64 Stat. 906, 947, 953 (1950).
Hearings Before the House Ways and Means Committee on Revenue Revision of 1950, 81st Cong., 2d Sess. (Vol. 1) 165 (1950) (Statement of Mr. Vance Kirby, Tax Legislative Counsel of the Treasury Department). This dual objective was retained throughout legislative consideration of the proposal. See K. Eliasberg, “Charity and Commerce: Section 501(c)(3)— How Much Unrelated Business Activity?” 21 Tax L. Rev. 53, 83 (1965).
Sec. 1.502-l(b), Income Tax Regs., says as much. It notes that a subsidiary organization of a tax-exempt organization can be exempt “on the ground that its activities are an integral part of the exempt activities of the parent.” It then states:
“However, the subsidiary organization is not exempt from tax if it is operated for the primary purpose of carrying on a trade or business which would be an unrelated trade or business (that is, unrelated to exempt activities) if regularly carried on by the parent organization. For example, if a subsidiary organization is operated primarily for the purpose of furnishing electric power to consumers other than its parent organization (and the parent’s tax-exempt subsidiary organizations), it is not exempt since such business would be an unrelated trade or business if regularly carried on by the parent organization. * * * [Emphasis added.]"
See Partnership for Health Amendments of 1967, Pub. L. 90-174, 81 Stat. 533, 42 U.S.C. sec. 246; Social Security Amendments Act of 1967, Pub. L. 90-248, 81 Stat. 821, 42 U.S.C. sec. 302; the Revenue and Expenditure Control Act of 1968, Pub. L. 90-364, 82 Stat. 251, 26 U.S.C. sec. 51; Tax Reform Act of 1976, Pub. L. 94-455, 90 Stat. 1520.