dissenting:
Because I think Flat Top Lake Association should not necessarily be excluded from the benefit of the exemption, I respectfully dissent.
The Association performs, as the majority recognized, “tasks of quasi-governmental nature” for the Association members and others. Those tasks include year-round water and sanitation services, snow removal from common areas, police protection, road and equipment maintenance and maintenance of the dam and other common areas. The Association is working with local authorities in considering construction of a sewage treatment plant. Further, it has promulgated a disaster relief plan in the event of failure of the dam, and it supplies a backup water supply to the nearby City of Beckley, a city of some 19,000 population.
The tax exemption was revoked because the IRS, with whom the district court and the majority have agreed, determined that the Association did not meet the definition of a “community” in order to qualify for the exemption because the Association “restricts the use of its facility to the exclusive use of its members.”1 At 110. Public use is thus made the sine qua non of a § 501(c)(4) exemption.
The rationale of the decisions of the district court and the majority is misplaced, however, for, as I will demonstrate, the proper premise of the federal tax exemption for social welfare organizations is not based upon public use, as the majority holds, but upon the public benefit derived therefrom. The district court found explicitly that Flat Top Lake Association falls squarely within the language of 26 U.S.C. § 501(c)(4) as “a nonprofit organization” operated “for the promotion of social welfare.” Since that finding of fact by the district court is even based on stipulation, I take it the matter is beyond question.
With all deference to the majority’s view, I suggest that we are off the track. The correct approach to the question before us is not that taken in the majority opinion; rather, it is that set out in Peoples Educational Camp Society, Inc. v. CIR, 331 F.2d 923 (2d Cir.), cert. den., 379 U.S. 839, 85 S.Ct. 75, 13 L.Ed.2d 45 (1964), in which the Second Circuit, in construing § 501(c)(4), stated:
The exemption granted to social welfare and like organizations is made in recognition of the benefit which the public derives from their social welfare activities, Trinidad v. Sagrada Orden, 263 U.S. *114578, 581, 44 S.Ct. 204, 68 L.Ed. 458 (1924), and we think it only fair to determine a particular organization’s right to an exemption largely on the basis of the effect its operations have on the public.
Thus, we see that the Second Circuit, unlike ours, by its reliance on Trinidad, places the emphasis where it should be, on the public benefit resulting from the activity, not upon the public use thereof.
Using that analysis, there is no doubt that in this case either a judgment for the taxpayer is required, or at the least the question should be reconsidered on remand. There is no evidence in this record but that all the activities of the taxpayer benefit the public, for they directly affect the public purse by performing activities which the taxpayers otherwise would have to pay for. Even if it might be said that the district court did not approach the matter from the standpoint of public benefit rather than public use and should be afforded another opportunity to find facts, that opportunity should be offered; although, in this case, I see no use of it because the government does not suggest any activity undertaken by the taxpayer which does not benefit the public.
. The ordinary definition of "community” is "A body of individuals organized into a unit or manifesting usually with awareness some unifying trait.” Webster's 3d Int'l Dictionary. And even the IRS defines the term, as used in connection with § 501(c)(4), as having "... a reasonably recognizable relationship to an area ordinarily identified as a governmental subdivision or a unit or district thereof.” Rev. Ruling 74-99.
It is at once apparent the decision of the majority can live with neither of these definitions, so it defines "community” so that it must "... related to the broader concept of social welfare,” or "... function(] within a broader national fabric.” At 111, 112. The quoted phrases used in the majority opinion, I suggest, are euphemisms for the fact that the taxpayer loses.