dissenting.
The charitable work of the American Bar Endowment is funded, in large part, through a procedure in which the Endowment provides insurance policies for participating American Bar Association members, and the members assign the dividends to the ABE. The primary question presented is whether that assignment of dividends is taxable as an unrelated “trade or business.”
“The problem at which the tax on unrelated business income is directed ... is primarily that of unfair competition.”1 The unrelated business tax was adopted in 1950, *120and substantially revised in 1969. It is useful to recall the kind of situation that gave rise to the unrelated business tax. Perhaps the best known case involved the C. F. Mueller Company. The Mueller Company was a longstanding macaroni concern. It was acquired and operated for the benefit of the New York University School of Law, and its profits were donated to the University. The Internal Revenue Service claimed that the macaroni company’s profits should be taxable, like any other competitive macaroni company, to avoid giving this competitor an unfair advantage. Although longstanding precedent seemed to be against the Commissioner, the Tax Court was sufficiently concerned about the implications that it agreed with the Commissioner. Ultimately, the Court of Appeals reversed, relying on precedent; by that time, however, Congress had acted and imposed a tax on unrelated business income. See C. F. Mueller Co. v. Commissioner, 190 F. 2d 120 (CA3 1951).
In considering the ABE insurance fundraising, then, it is appropriate to assume that, if the ABE were funded by operating a normal macaroni company and receiving an unfair competitive advantage from its tax exemption, it would be a “trade or business” within the Act and taxable. On the other hand, it is equally clear that, if the ABE simply provided insurance for ABA members at very low cost, and sent the insurance dividends with an urgent request that the dividends be assigned to the Endowment, the arrangement would not be a “trade or business,” and would not be taxable.2 The *121central issue in this case is thus whether the ABE’s insurance program should be viewed as akin to the macaroni company, and thus a “trade or business,” or as akin to the dividend assignment request, and thus not a “trade or business.”
I believe that the ABE’s activities are far closer to the latter than the former for two reasons. First, there is no danger of unfair competition, the problem that the unrelated business tax addresses. Second, the program has functioned as a charitable fundraising effort, rather than as a business.
HH
An understanding of the purpose of the unrelated business income tax exposes a basic error in the Court’s analysis. As noted, that purpose is to protect commercial enterprises from the unfair competition that may be generated by the operation of competing businesses by tax-free organizations. There is no evidence in the record, despite more than three weeks of trial and numerous witnesses, to support the notion that the Endowment’s provision of insurance to its members has had any competitive impact whatsoever. The Court relies on a parade of hypotheticals to justify its conclusion that there is some effect on competition.3 The Court is, however, unable to point to a single piece of evidence in the *122record to justify its conclusion about the effect on competition. “Speculation about hypothetical cases illuminates the discussion in a classroom, but it is evidence and historical fact that provide the most illumination in a courtroom.” Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 586 (1986) (Stevens, J., dissenting). The trial judge scoured the record for evidence pointing to a harmful effect on competition, and found none.4 The ab*123sence of evidence in the record, rather than the Court’s ruminations about possibilities and likelihoods, should control our analysis.
The legislative history further underscores the fact that the ABE insurance operation poses none of the possible effects on competition that the unrelated business tax was intended to address. Congress has twice made clear that insurance programs by other nonprofit organizations are not subject to the unrelated business tax. When Congress substantially revised the unrelated business tax in 1969, the accompanying legislative history emphasized that the group insurance policies provided by fraternal organizations were not intended to be subject to the unrelated business tax.5 Similarly,' when a question arose concerning the taxability of income from insurance programs administered by veterans’ organizations, Congress enacted legislation to ensure that the insurance income would not be taxed.6 Indeed, Con*124gress found the taxation of the veterans’ insurance operations so contrary to its intent that it took the unusual step of making the 1972 amendment fully retroactive to 1969.7
The Government argues that these developments actually support its position because the need for congressional attention, and the emphasis on the “substantially related” prong for the fraternal societies, reveal that, without such attention, and without such a substantial relationship, the activity should be presumptively taxable. Particularly when the general legislative purpose of preventing unfair competition is considered, however, these legislative developments have a different significance. For they highlight the fact that the “market” in which the ABE is competing, even temporarily leaving aside the complete absence of evidence of harm to competitors, is itself already partially exempt from the unrelated business income tax provisions, and the possible threat to competition becomes all the more hypothetical and remote.
Ironically, moreover, the tax-exempt alternative suggested by the Government would have a far more obvious effect on competition than the ABE’s current fundraising process. For the ABE would then be offering insurance rates dramatically lower than those available elsewhere. If speculation of the kind indulged in by the majority is appropriate, that speculation surely should include the realization that the tax-exempt alternative — in which the ABE would merely recover its actual costs of managing the program and return all of the premium refunds to the individual policyholders — would attract more than the 20% of the ABA membership *125that currently hold ABE policies; it would appeal to those who simply want an insurance bargain rather than those who also want to make a charitable contribution.8
It is not completely surprising that a consideration of the purpose of the unrelated business tax in light of the record developed at the extensive trial leads to a conclusion that the ABE’s program should not be taxed. For the Government itself initially held such a view.9 Furthermore, the ABE’s insurance program was initiated in 1955 as a pioneering, and widely publicized, effort in charitable fundraising. When Congress revamped the unrelated business tax in 1969, there was no suggestion that it was intended to apply to this venerable and successful program, and the IRS did not so interpret it until several years later.
In short, a proper consideration of the purpose of the unrelated business tax leads to a conclusion that the ABE’s insurance program is not a “trade or business.”10
I — I I — I
Not only does the ABE program completely fail to raise the concerns against which the unrelated business tax is directed, but it is also operated as a charitable fundraising endeavor.
The learned trial judge expressly found, after hearing a good deal of evidence, that the assignment of the dividends *126was the result of charitable intentions, rather than a commercial transaction. First, he found that, since the program’s inception, for three decades, the ABE has trumpeted the insurance program as a charitable fundraising activity, and that it has been so understood.11 The trial court emphasized that even members who testified against the ABE viewed the insurance program as strictly a charitable fundraising effort.12 Second, the court specifically found that the reason for the Endowment’s enormous profits was the charitable intent of the members.13 Finally, the court emphasized that, all of the factors of the program, taken together, compel the conclusion that the ABE procedure was operated as, and understood to be, charitable fundraising rather than a business.14
*127Notwithstanding the Court of Appeals’ explicit endorsement of the trial judge’s findings,15 this Court speculates that the members’ assignment of their premium refunds was not “voluntary” because the assignment was a condition to participating in the insurance program.16 This speculation rests on a remarkably unrealistic appraisal of the intelligence and independence of the lawyers who participate in the ABE program. Those who elected to buy the insurance and contribute the premium refunds to the Endowment clearly understood the legal consequences of the transaction, and were free to purchase insurance elsewhere if they did not want to make the requested charitable contribution.17
*128The Court’s opinion also seems to rest on the notion that the ABE members who purchased insurance were somehow coerced by a monopolist.18 But this is absurd. There is nothing in the record to suggest that the insurance policy offered by the ABE to its members was so attractive that the ABE could foist some unwanted condition upon its members. After all, only 20% of the membership purchased the policies. This transaction has none of the earmarks of an improper tying arrangement.19
Finally, the Court states that “there is no factual basis” for an assumption that the large revenues generated by the insurance program were the result of the members’ charitable motivation rather than the market value of the insurance package, see ante, at 112-113. But this is what the Claims Court found:
“I am persuaded that if the American Bar Association Plan were not viewed as a fundraising enterprise and were not viewed by the overwhelming majority of the membership as something to be tolerated as, to be sure, *129an economic expense but one for the good of the profession, and for the greater good of society, that it would not exist, it could not have existed, it could not have survived, it would not have survived to today. And at least on the basis of this record those are my findings on that point.” App. 505.
See also 4 Cl. Ct. 404, 405, n. 1 (1984) (incorporating oral findings of fact).
I believe that we are bound by that finding. The Court’s suggestion to the contrary notwithstanding,20 rejecting that finding would run afoul of the “two court rule,”21 would decide the case on a ground expressly disavowed by the Government,’ and would conflict with the record. That finding, combined with the other findings and with a proper analysis of the purpose and scope of the unrelated business tax, requires a conclusion that the ABE has been operated as a charitable fundraising effort, rather than as a commercial business.
Ill
The ABE’s program poses no harm to competitors and has been operated as a charitable fundraising activity. Depending on its members’ agreement to assign their dividends, it is far less like the operation of a competitive macaroni company than like the provision of insurance as a service with a request for the dividends. In my opinion, the Court of Appeals and the Chief Judge of the Claims Court were both quite correct in concluding that, on the basis of the record *130generated at the vigorously contested trial, the tax that the Government seeks to collect in this case was not the kind of tax that Congress intended to impose.22 Accordingly, I respectfully dissent.
H. R. Rep. No. 2319, 81st Cong., 2d Sess., 36 (1950). See also United States v. American College of Physicians, 475 U. S. 834, 838 (1986) (“Congress perceived a need to restrain the unfair competition fostered by the tax laws”); ante, at 114 (“The undisputed purpose of the unrelated business income tax was to prevent tax-exempt organizations from competing unfairly with businesses whose earnings were taxed”); Treas. Reg. § 1.513-l(b), 26 CFR § 1.513-l(b) (1985) (Congress enacted the unrelated business tax “to eliminate a source of unfair competition by placing the unrelated business activities of certain exempt organizations upon the same tax basis as the nonexempt business endeavors with which they compete”).
See Tr. of Oral Arg. 16 (Solicitor General’s argument) (“If the Endowment were to refund the dividends to the members and the members were then voluntarily and individually to donate the money back to the Endowment, it is clear, and the IRS has agreed that the members would then be entitled to a charitable contribution deduction and that that money would come into the hands of the Endowment as charitable receipts, not as business income”). See also Brief for United States 24-25 (“If the Endowment had instead consented to rebate the dividends to its members, coupling such rebates with a request that the members voluntarily contribute the dividends back to it, it would have a strong claim that funds thus contrib*121uted were derived ‘from’ charitable solicitations rather than ‘from’ its insurance business”); id., at 37 (“Had the Endowment requested its members individually to return their dividends as an act of generosity, it would have dealt with them as a charity”); ante, at 113 (“Were ABE to give each member a choice between retaining his pro rata share of dividends or assigning them to ABE, the organization would have a strong argument that those dividends constituted a voluntary donation”).
See ante, at 115 (“It is likely . . . that many of ABE’s members belong to other organizations that offer group insurance policies”); ibid. (“Employers, trade associations, and financial services companies frequently offer group insurance policies”); ibid. (“Presumably those entities are taxed on their profits”); ibid. (“Such entities may therefore find it difficult to compete for the business of any ABE members who are otherwise eligible to participate in these group insurance programs”) (emphases added).
In its oral opinion at the end of trial, the Claims Court emphasized the absence of a “Ronzoni” — the macaroni-selling competitor who had been harmed by New York University’s tax-free entry into the business:
“The unrelated business income tax was passed to avoid a certain kind of evil. ... So you go back and look at what evil there is in the market. What was Congress trying to do. . . when the. . . tax was passed, and one comes to the frequently-asked question, Who is Ronzoni.’
“Now, nobody has really satisfactorily pointed to Ronzoni for me. I have been listening for three weeks of trial and nobody came up and said, ‘Here, this is Ronzoni, this is the competitor that will be adversely affected in the manner in which Congress feared there would be adverse effects when it slapped Mueller Macaroni Company on the wrist, or basically said you cannot do that, you cannot use your . . . tax exempt status to make profits. [']
“And I am still somewhat nebulous as to who Ronzoni is, as to who is hurt, who is damaged if members of the association on the one hand allow the association to use its group asset in order to raise funds.
“And . . . perhaps other witnesses and other economists, on a different record, somebody will be able to point out to me Ronzoni in this . . . picture, but I have tried very hard, and looking at the policies of the tax, the policies of the unrelated business income tax, I have not been able to find the evils that Congress sought to alleviate by passing that tax.” App. 507-509.
In the published opinion, the Claims Court incorporated its earlier oral opinion, 4 Cl. Ct. 404, 405, n. 1 (1984), and reiterated that the record did not support a finding of a harmful effect on competition:
“The absence of any identifiable business over which the ABE is able to gain an unfair advantage supports the conclusion that its activities are not commercial and therefore not a business. At the very least, it suggests that nothing in the policies underlying the [unrelated business tax] requires that the Endowment’s activities be taxed. Indeed, it appears that *123the Endowment’s activities have an entirely proeompetitive effect, fully consistent with the policies of the [unrelated business tax]. The congressional purpose behind the statute would therefore not be served by holding that the Endowment was engaging in a business activity by operating the insurance program.” Id., at 414.
See H. R. Rep. No. 91-413, p. 47 (1969) (“In extending the unrelated business income tax to virtually all exempt organizations . . . the bill continues to exclude from ‘unrelated business income,’ earnings from business related to an organization’s exempt function — such as an insurance business run by a fraternal beneficial association for its members”); S. Rep. No. 91-552, p. 68 (1969) (“[I]f the fraternal beneficiary society directly provides insurance for its members and their dependents, or arranges with an insurance company to make group insurance available to them, the amounts received by the society from its members for providing, or from the insurance company for arranging, for this exempt function will continue to be excluded from the unrelated business income tax”).
See S. Rep. No. 92-1082, pp. 2-3 (1972) (The “1969 Act extended the application of the unrelated business income tax to virtually all exempt organizations, including social welfare organizations and social clubs. . . . As a result, questions have been raised as to whether the income derived by veterans’ organizations from their insurance activities is now subject to the unrelated business income tax. . . . [I]t was made clear in a 1969 Act *124committee report that income from insurance activities of fraternal beneficiary associations would be exempt from the unrelated business income tax. The committee agrees with the House that there was no reason not to provide similar treatment for exempt veterans’ organizations”).
See id,., at 3 (“Since the committee believes that there was no specific intent to tax the insurance income of veterans’ organizations by the 1969 Act, it, therefore, believes it is appropriate to make the exemption of their insurance income from the unrelated business income tax effective as of the effective date of the Tax Reform Act”).
Cf. 4 Cl. Ct., at 414 (“Had the program been operated entirely as a service, offering the lowest possible rates, many more members would have joined the program and there would have been greater concentration of business in the two insurance carriers”).
See I. R. S. Letter Ruling 8042012 (July 3, 1980) (citing technical advice memorandum of January 31, 1973, which concluded that ABE’s insurance program was not a business); 4 Record 854. See also 4 Cl. Ct., at 414.
Cf. Hope School v. United States, 612 F. 2d 298, 304 (CA7 1980) (Sprecher, J.) (“unfair competition is the key to whether the activities of the Hope School constitute an unrelated trade or business as a matter of law”).
See 4 Cl. Ct., at 409 (“Advertising and other promotional materials consistently referred to the use of dividends for the Endowment’s charitable endeavors; the Endowment’s annual reports discussed the insurance program as a source of charitable contributions; communications to policyholders consistently referred to the Endowment’s retention of dividends as donations, not as profits. In short, both the ABE leadership and the insured members considered the insurance program a fundraising activity and treated it as such”).
See id,., at 409, n. 5 (“Even those ABE members who testified for the defendant appeared to share this view. While these witnesses disagreed with the manner in which the program was operated and would have preferred to pay lower premiums by terminating the program’s fundraising function, they certainly never suggested that the Endowment was operating a business which was profiting at their expense”).
See id., at 411-412 (“The amount of money ABE is permitted to retain far exceeds the value of any service it may be providing through the operation of the insurance programs. It is quite obvious, then, that this money was not earned ‘from the sale of goods or the performance of services,’ 26 U. S. C. § 513 (c) (1976), but for some other reason. That reason was the intent of the members to support the Endowment’s charitable activities”).
The trial judge found:
“When taken together, these factors make it impossible to conclude that the insurance programs were operated by ABE in a competitive, commercial manner. The Endowment raised huge sums of money by its activities, sums wholly unrelated to the value of any service it provided and which *127dwarfed the profit margins of insurance-related businesses. It disclosed the relevant facts to its members at every available opportunity, yet the members (who bore the economic cost of this program) allowed the practice to continue although they collectively had the power to change it. No business could operate in this fashion. . . . One would have to assume that ABA/ABE members have been subject to an epidemic of irrationality in permitting themselves to be bilked in this manner for almost three decades. The far more reasonable explanation is that the members are entirely rational and are permitting the ABE to collect such substantial revenues at their expense because they consider the Endowment to be engaged in fundraising, which they support. By any standard, an enterprise that depends on the consent of its customers for its profits is not operating in a commercial manner and is not a trade or business.” Id., at 411.
“In this connection the Claims Court specifically and permissibly rejected the Government’s contention that the dividends represent a payment for the Endowment’s services. Because the Endowment’s accumulation of funds was not the result of a commercial exchange, we agree with the Claims Court’s view that the dividends do not constitute ‘profits’ which fall within the definition of section 513(e).” 761 F. 2d 1573, 1578 (CAFC 1985) (footnote omitted).
See ante, at 113 (“It is simply incorrect to characterize the assignment of dividends by each member as ‘voluntary’ simply because the members theoretically could band together and attempt to change the policy”).
The Court’s description of the insurance program is also somewhat misleading. For example, it states that “the after-tax cost of ABE’s insurance to its members is less than the cost of a commercial policy with identical coverage and premium rates.” Ante, at 108. This statement assumes, contrary to the Court’s holding, that the assignment of the member’s pre*128mium refund is a tax-deductible contribution by the member to the ABE. Even on this assumption, however, the statement is inaccurate. Assume an ABE annual premium of $100, a refund of $40, and a 50% tax bracket for the member: After-tax cost is then $80. Identical coverage and premium rates for a non-ABE member (with the $40 refund retained by the policyholder) would produce a net cost of only $60. Only if one assumes “identical coverage and premium rates” but a $40 refund in the ABE case and no refund in the non-ABE case would the Court’s statement be accurate. But then the disparity would be attributable to the differing refunds, not to the deductibility of the contribution. The Court seems to assume that a tax deduction is more valuable than cash. No wonder it is unable to recognize the charitable character of the assignments described in this record.
Cf. ante, at 113 (suggesting that case presents “a standard example of monopoly pricing”).
Nor does the ABA represent the kind of coerced membership situation that raises constitutional concerns and a need for judicial solicitude for a member who disagrees with the organization. Cf. Teachers v. Hudson, 475 U. S. 292 (1986) (First Amendment rights of nonunion worker when union seeks agency fee as the exclusive bargaining representative).
See also ante, at 116 (“Even if we assumed . . . that the court’s failure to attach the label ‘trade or business’ to ABE’s insurance program constitutes a finding of fact, we would be constrained to hold that finding clearly erroneous”).
See Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U. S. 271, 275 (1949) (“A court of law, such as this Court is, rather than a court for correction of errors in fact finding, cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error”).
In my opinion, moreover, the charitable character of the dividend assignment requires that the assignment be deductible for the individuals at the time the policy is purchased or renewed just as it would, in the Government’s example, at the time the dividend was received and assigned.