dissenting:
The majority’s scholarly and pragmatic opinion makes a persuasive presentation for its holding that, under the highly individualized facts presented to us, the profits from the sales by the tax-exempt hospital’s pharmacy to private patients of the staff doctors should likewise be regarded as tax-exempt, because “substantially related” to the tax-exempt purpose of the charitable, institution. I.R.C. §§ 501(a), 511, 513(a). The majority concludes that the activity meets this test essentially because it “contributes importantly” to the accomplishment of the tax-exempt function, see Treas. Reg. § 1.513-l(d)(2), under the narrow facts before us — that, to accomplish the tax-exempt purposes of affording hospital facilities in this small (pop. 2,250) community, it was necessary to provide substantial inducements to physicians to practice at the hospital center.
The majority therefore concludes that the sale of prescriptions at a profit to the private non-hospitalized patients of these medical practitioners (engaged in a private medical practice, not part of the tax-exempt function) can be considered substantially related to the tax-exempt purposes of the hospital itself — just as is, concededly, the sale of prescriptions to hospital patients, or (to entice the doctors to come) the furnishing by the hospital of office space to the doctors and of substantial below-cost assistance (nursing, bookkeeping, and billing) to them for their private and for-profit medical practices.
I respectfully disagree. The hospital pharmacy is open for sales at a profit to the general public and to private patients of the doctors (already furnished offices and other services by the hospital in aid of its tax-exempt purpose). I think the sales of prescriptions at a profit to non-hospital patients of doctors engaged in that regard in the practice of medicine for their personal profit is too attenuated in connection with the tax-exempt purpose so as to itself be tax-free.
The determinative issue is whether this activity “contributes importantly” to the accomplishment of the tax-exempt purpose, Treas.Reg. § 1.513(d)(2), so as to be considered as “substantially related ... to the exercise or performance ... of its charitable ... function constituting the basis for its exemption under section 501.” I.R.C. § 513(a). I would not disturb the administrative determination to the negative, nor the district court’s findings to the negative (which, insofar as factual, are not clearly erroneous). The majority concedes that the sale of drugs to the general public, at least if on a non-occasional basis, would not be substantially related (i.e., contribute importantly) to the tax-exempt purpose. No more, in my opinion, should be the sale at profit of drugs by prescription to the private patients of doctors (themselves in this regard engaged in a medical practice for their own profit) — prescriptions that could as well be filled by pharmacies elsewhere (although, admittedly, more conveniently at the hospital’s own pharmacy).
I therefore agree with the findings and conclusions of the district court, as follows:
The court finds the evidence clearly establishes that the sales by the pharmacy to the private patients of the physicians were incidental to the purchaser’s visit to his private physician and not incidental to the use of services provided by the hospital. Consequently, these sales constitute a trade or business which is not substantially related to the exercise or performance of plaintiff’s exempt purpose, namely that of providing a hospital. The mere fact that the doctors operated out of the hospital under the arrangement described above and that these pharmacy sales were made by employees of the hospital does not qualify such sales as being a portion of the exempt purpose of the hospital. Since the sales are related to the private practices of the physicians and are substantially unrelated to the hospital, the income produced is taxable under 26 U.S.C. § 511.
It is noted that the legislative history of these pertinent statutes indicates that one of the bases of their enactment was to prevent unfair competition. This *535court finds that this purpose would be served by denying plaintiff recovery in this case. During the period of years in question, the evidence indicated that two or more pharmacies had commenced their operation in Hale Center but were unable to continue in business for any lengthy period of time. To the contrary, the hospital’s pharmacy was able to sustain its business, show a profit, and continue in business to this date. It would have a favored status in the event a tax exempt privilege were to be allowed for the hospital pharmacy income.
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This court has guidance from Carle Foundation v. United States of America, 611 F.2d 1192 (7th Cir. 1979), in which the Seventh Circuit expressly held that pharmaceutical sales such as those presently in question give rise to unrelated business taxable income. The pharmaceuticals which were purchased by the doctors’ private patients were as an incident of that person’s visit to the private physician rather than as an incident to the hospital. Carle, supra, at 1200. The material facts of this case are the same as those in Carle and this court elects to follow that holding.
Therefore, pharmacy sales to all persons who are not patients of the hospital, whether they are private patients of the physicians who office in the hospital or members of the community who come into the hospital for the sole purpose of purchasing pharmaceuticals, are taxable as unrelated business income.
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In concluding, I must nevertheless admit the attractiveness of the individualized case-by-case consideration espoused by the majority. Bright-line ease of administration of the tax laws should yield to individualized equitable application, if indeed that was the intention of the Congress.
In my opinion, however, the danger of the majority’s approach is that the judicial subjectivity in weighing the graduated factors — how small the town, how “important” the contribution, how “substantial” the relationship — will lead to uncertain and unequal applications, and also, to much greater judicial involvement in the ultimate determination of whether income from an unrelated trade or business conducted by a charitable organization is taxable. Compare majority opinion (income not taxable) with the Seventh Circuit’s Carle Foundation, supra, (income taxable under generally similar circumstances). The majority’s approach is further open to a more substantive objection. By hair-splitting judge-determined distinctions with regard to generically similar facts, profit-making activities conducted by charitable institutions separate from their tax-exempt purpose will be permitted to enjoy a competitive advantage over tax-paying businesses attempting to afford the same service, contrary to the Congressional intent made manifest by the legislative history and statutory provisions requiring taxation of such profit-making subsidiary operations.
I therefore respectfully dissent.