All She Wanted to Do Was Start a Little Magazine
…Then she got a letter from the IRS

by Bree Nordenson

The cover of the second issue of 3rdfloor, which the IRS is attempting to deny nonprofit status.

On a brutally cold February day, Katie Rubright sits hunched over a cup of tea in a cramped vegan café in New York’s East Village neighborhood. The 24-year-old moved to Brooklyn last summer with her dog and 3rdfloor, a quarterly radical arts magazine she started in Baltimore two years ago. True to its tagline, “a portable art space,” the magazine showcases the work of emerging artists. “I want to promote alternatives to these huge arts organizations and blah, blah, blah,” Rubright explains. She dresses the way she talks—casually, in loose-fitting pants and a black hoodie with holes in the sleeves. She wears nondescript glasses and her short brown hair is sticking up in places. She is unpretentious, a quality she thinks the art world could benefit from and one of the reasons she started 3rdfloor. “I just want to print art that’s both good and by people you usually don’t see,” she says with a shrug.

In December 2004, before publishing the first issue, Rubright submitted an application to the Internal Revenue Service for nonprofit status. Without startup capital or a reputation in the publishing world, Rubright believed that becoming a nonprofit was the best way to go. The magazine would qualify for grants, could solicit tax-deductible contributions and would receive reduced postal rates. As she prepared to launch 3rdfloor, Rubright anticipated that her toughest challenge would be securing funding. But in May 2005, she learned that there were bigger obstacles to overcome. She received a letter from the IRS that began, “Before we can determine whether your organization is exempt from Federal income tax …” Now, nearly a year, four magazine issues and two lawyers later, Rubright and the IRS are engaged in an epistolary war, the consequences of which could include a lengthy legal battle, possibly ending in 3rdfloor’s demise or a fundamental change in the way the government grants nonprofit status.

The magazine’s co-founder, Katie Rubright

Rubright graduated from James Madison College in Virginia in 2003 with a degree in art history. That summer, she moved to Baltimore and took a part-time position at the Walters Art Museum handing out headphones for audio tours. She and her friend Heidi Cunningham began making plans to start their own public arts organization.

In the early summer of 2004, they held an art show in Rubright’s spare bedroom, displaying their own work and that of their friends. But Rubright wanted to reach more people, so they decided to start a magazine. She and Cunningham, who has since moved to California and is no longer a principal in the magazine, spent the rest of the summer researching nonprofits and drafting a business plan. They incorporated 3rdfloor in September and submitted their application for tax-exempt status to the IRS a few months later.

While they waited for a response, they published the first two issues. On the opening page of the
debut issue, which came out in February 2005, Rubright wrote, “It is increasingly difficult to find outlets for art that is unconventional in style or content, particularly for independent, part-time, and/or non-professional artists.” The art on the following pages included a collage piece of a Native American Madonna smoking a cigarette, a depiction of George W. Bush with crosses on his shoulders and skulls behind him, and a plastic sculpture of the Virgin Mary dripping with blood from a shotgun wound.

By May, Rubright had formulated a mission statement: “3rdfloor steps up and gives the finger to pre-packaged culture and art world elitism, cramming their glaring voids with revolutionary art created by and for everyday folks.” Like the first issue, the second contained some provocative artwork. The opening piece was a series of photographs documenting a four-hour performance titled “Pinned.” Two jars of pins representing the number of reported and unreported rapes in four hours were placed next to a naked woman wrapped in plastic on a bare mattress.

An example of artwork the IRS claimed was “inappropriate, lewd, immoral, licentious and sacreligious”

Viewers were invited to select a pin and stick it through the plastic wrap. Other artworks in the issue included a photograph of a supermarket pet-food aisle, a pink tie with the words “We don’t want your fucking war,” and a metal sculpture titled “Armed Texas Oil Can Man.”

A month after the release of the second issue, the IRS sent 3rdfloor a request for additional information, which Rubright promptly provided. A few weeks later, she received a response in the form of a four-page, single-spaced letter that was largely devoted to attacking the magazine’s content. According to the IRS, 3rdfloor contained “inappropriate, lewd, immoral, licentious, and sacrilegious pictures and text.” The letter specifically cited “Pinned,” the depiction of George W. Bush, the Native American Madonna and a poem about rape. “Several works contained in your publications depict obscene, offensive representations of sexually oriented material or ultimate sexual acts and would not appear to meet the definition of ‘advancing education or science,’ ” wrote the IRS.

After reading the letter, Rubright remembers thinking: “Oh no, what the fuck do we do? This is censorship. We’re sunk. This is it.” With only a week to respond to the IRS’s accusations, Rubright and Cunningham frantically contacted Volunteer Lawyers for the Arts, a nonprofit organization that offers legal services to artists.

Rubright and Cunningham had submitted an application for 3rdfloor to be considered a tax-exempt “educational” organization, which the IRS broadly defines as “the instruction of the public on subjects useful to individuals and beneficial to the community.” Schools, museums and youth groups are typical examples of educational nonprofits. When the IRS assesses such applications, it relies on a database of internal documents called revenue rulings and procedures, as well as relevant case law. According to these documents, several of which were cited in the letter, the IRS did not think 3rdfloor qualified.

This is not the first time the IRS has threatened to deny nonprofit status to an avant garde publication edited by women and dealing with, among other things, issues of sexuality. In the late 1970s, a feminist newspaper, Big Mama Rag, was denied tax-exempt status on the grounds that it did not present “a sufficiently full and fair exposition of the pertinent facts.” Big Mama Rag appealed the decision, and in 1980 a federal court ruled that the “full and fair” guideline was unconstitutionally vague and violated the First Amendment’s guarantee of free speech.

The IRS then replaced the “full and fair” standard with what it called “the methodology test,” a set of four criteria. According to the first and most important criterion, an advocacy organization will not be considered educational if “the presentation of viewpoints or positions unsupported by facts is a significant portion of the organization’s communications.” The methodology test also disqualifies organizations that make “substantial use of inflammatory and disparaging terms” or have viewpoints based on “distorted” facts.

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