        T                      N           ENERAL




                        August 6,, 1952


Hon. Gibb Gilchrist
Chancellor
Texas A. 8 M. College System
C,ollege Station, Texas      Opinion No. V-1491

                                Re: Legality of expending funds
                                    of the Texas Engineering Ex-
                                    periment Station to pay the
                                    Federal income tax tmposed
                                    by Section 422, Internal Reve-
                                    nue Code, eonunrelated busi-
                                    ness income of State colleges
Dear Sir:                           and universities.

          You request an opinion of this office concerning the avail-
ability of funds with which to pay Federal income taxes on income
derived from fan testing activities of the Texas Engineering Experf-
ment Station.    Under the~provisions of the Internal Revenue Code,
income from activities unrelated to the function of a college or uni-
versity is subject to the payment of Federal income taxes. The
activity about which you inquire is explained by you as follows:

         “The Texas Engineering Experiment Station, a part
    of the Texas A. and M. College System, conducts research
    projects designed to improve electric fan testing methods,
    fan construction, and consumer utilization. In connection
    with this research the Texas Engineering Experiment
    Station conducts fan testing activities for manufacturers on
    a fete basis. The data obtained from such tests is available
    for research purposes.    While this research could conceiv-
    ably be conducted without the testing activities, the latter
    are definitely a valuable adjunct to the former.”

         You pointy out, however, that the Bure:au of Internal Reve-
nue has proposed the following definition of unrelated business net
income in its order published in 14 Fed. Reg. 204, 209 (1952):
Hon. Gibb Gilchrist,   page 2 (V-1491)


         ,?(iii) In the case of an organization operated
    primarily for the purpose of carrying on fundamen-
    tal research (as distinguished from applied research)
    the results of which are freely available to the gen-
    eral public, all income derived from research per-
    formed for any person and all deductions directly
    c’onnected with such income shall be excluded in
    computing unrelated business net income.

          “‘(iv) For the purpose of this section, the term
    ‘research’ does not include activities of a type ordi-
    narily carried on as an incident to commercial or
    industrial operations, for example, the ordinary
    testing or inspection of materials or products or the
    designing or construction of equipment, buildings,
    etc.    The term ‘fundamental research’ does not in-
    clude research carried on for the primary purpose
    of commercial or industrial application.*

         Based upon these facts you ask the following question:

          “In order that we may comply with the State and
     Federal laws, we desire the opinion of your office as
    ,to whether or not the Texas Engineering Experiment
     Station may legally expend a portion of the net income
     derived from fan testing activities or any other source
     defined by Federal law as ‘unrelated business income’
     to pay the Federal income tax imposed by Section 422
     of the Internal Revenue Code or any other Federal law,
     beginning with the fiscal year 1952-53.”

          In answering your question we are expressing no opinion
as to the liability of the Texas Agricultural and Mechanical College
System or the Texas Engineering Experiment Station for the taxes
in question. We are assuming, as you have assumed in your re-
quest, that there may be some liability and that your question con-
cerns only the availability of funds with which to meet this liability.

          The funds which are derived by the Texas Engineering
Experiment Station for the testing in question are local or insti-
tutional funds, that is, they are not appropriated by the Legislature
from, the General Revenue Fund. Section 31 of Article 5 of House
Bill 426, Acts 52nd Leg.,, R.S. 1951, ch. 499, p. 122s. at p. 1472        .-
Hon. Gibb Gilchrist,   page 3 ~(VLl491)                           1



(General Appropriation Bill), @Mikes      in part:

         -he ,~ovemii$g boarda of each of the colleges
    or universities ,for, which appropriations are made
    herein’da~    deposit in the State Treasury ‘all cash
    rereipts from all so&es      except auxiliary enter-
    p&es;   no*i&truct~onal services, agency and i-e-
    strkted funds,‘endc+wment funds; student ‘loan funds,
    and Con&it&o&l       College Building’ Amendment ‘Funds.
    The State Treasurer is directed to credit such receipts
    deposited by each such institution to a separate fund ac-
    count for the in&it&on depositing the receipts, buthe
    shall not beerequired to keep separate accounts of types
    of funds deposited by~each institution. . . .”

         Section 2 of Article   5 of House Be   426, e,    at p. 1462,
provides :

          ‘All balances in the institutional funds of the sev-
    eral State institutions named in this Article, at the close
    of the fiscal year ending August 31, 1951. including bal-
    ances in their revolving funds at that time, and the en-
    tire income to said funds du.ring each of the fiscal years
    endfng August 31, 1952, and August 31. 1953, which are
    not otherwise appropriated for either or both of said
    fiscal years, are hereby appropriated for the operation,
    mafntenance, and improvement sf said State institutions
    during each of said fiscal years respectively.*

          It is thus se,en that the funds derived from the fan testing
activity, being local or institutfonal funds, are appropriated *for
the operation, maintenance, and improvement* of the state insti-
tutions acquiring the funds. Should there be a liability for the in-
come tax caused by the carrying on of activfties connected with the
research required in the operation of the Texas Engineering Exper-
iment Station, the payment of this liability would be required for the
operation and maintenance of Texas Agricultural and Mechanical
College System. The expenditure, therefore, would come within the
appropriation and a part of the local funds derived from the activity
causing the liability could be used for the purpose of paying the tax
if and when duo.
Hon. Gibb Gilchrist,   page 4 (V-1491)


                          SKMMARY

         Section 2 of Article V of House Bill 426, Acts
    52nd Lag., R.S. 1951, ch. 499, p. 1228 (General Ap-
    propriation Bill) authorizes the Texas Engineering
    Experiment Station of the Texas Agricultural and
    Mechanical College System to expend a portion of the
    income derived from testing activities to pay Federal
    inc:ome taxes on the funds derived from the activity,
    if and when due.

APPROVED :                               Yours very truly,

Mary K. Wall                              PRICE DANIEL
Reviewing Assistant                      Attorney General

Charles D. Mathews
First Assistant                          BY K9-Jf-J
                                            E. Jacobson
                                               Assistant
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