Hoadley v. County Commissioners of Essex , 105 Mass. 519 ( 1870 )

Morton, J.

The only question presented in this case is, whether the petitioner is liable to be taxed in Lawrence for the shares in the McKay Sewing Machine Association owned by him. This question must be decided by the construction of the statutes regulating taxation, and not upon any considerations of supposed policy or equity; and we are unable to find any provision of statute which makes such shares taxable.

The McKay Sewing Machine Association is not a corporation. It has never received an act of incorporation, nor been organized as a corporation under the general laws. A corporation can only be created and exist by sanction of the legislature. This is a voluntary association of individuals, and its articles of agreement, although they adopt some of the forms of managing the business usual in corporations, constitute a copartnership. It cannot sue and be sued as a corporation ; its members are individually liable for its debts ; and it has none of the special attributes which belong to a corporation duly organized under our laws. Oliver v. Liverpool & London Insurance Co. 100 Mass. 531. Tyrrell v. Washburn, 6 Allen, 466. The provision that each member may sell and transfer his interest, and thus introduce a new partner, though unusual, is not inconsistent with the contract of copartnership.

It is clear, therefore, that shares in this association could not be taxed under the Gen. Sts. c. 11, § 4, as “ stocks in a moneyed corporation,” even if any such stocks could be taxed to the owners since the passage of the St. of 1865, c. 283. Being a co-partnership, the laws applicable to that relation must- govern its rights and liabilities; and it follows that the personal prop erty held by it was properly taxable in Boston, where its business is carried on, and not in Lawrence. Gen. Sts. c. 11, § 15. Little v. Cambridge, 9 Cush. 298. The petitioner, therefore, was not taxable in Lawrence for his interest in the personal property of the firm.

But the tax in question was assessed upon the market value of his shares, treating them as so many shares of corporate stock. No provisions of statute, or authorities, are cited, by which such a tax can be upheld. The property of each partner in a firm is an undivided interest in all the assets as a tenant in common. For that interest, if the firm is established in this state, he is taxable in the town which is the business domicil of the firm; if it carries on business in another state, he is taxable at his place of residence. Bemis v. Aldermen of Boston, 14 Allen, 366. He has no other interest in the firm which is subject to taxation. The fact that, by agreement between the partners, in this case, the share or interest of each partner in the firm is transferable, does not make it taxable specifically. If such shares have a market value larger than the amount of property held by the firm, it is a speculative value, founded upon the expectation of future profits, and is not property which is taxable under our laws.

The argument of the respondents, that these shares are as much property as stock in corporations, and therefore ought to be taxed, is fallacious, because it necessarily results-in double taxation of the same property. Formerly stock in corporations was taxable to the shareholders in the places of their residence, because the corporations were not taxed for any of their personal property except machinery employed in manufactories. To guard against double taxation, the tax acts required assessors to deduct from the value of the shares the value of all property, real or personal, which was taxed directly to the corporation; and when an equivalent tax or excise was imposed directly upon corporations, the stock of shareholders was exempted from local taxation. St. 1864, o. 208. St. 1865, c. 283. If this tax is upheld, the property of the petitioner is subjected to double taxation; once in the business domicil of the firm, and once in the town where he resides.

We are therefore of opinion that the tax assessed by the city of Lawrence upon the petitioner was illegal. We have not deemed it necessary to consider what is the effect of the fact that the legal title to the property of the association is by the articles of agreement vested in McKay as trustee. This fact cannot make the case more favorable for the respondents, because, if the property is to be regarded as property held in trust under the Gen. Sts. c. 11, § 12, cl. 5, it is clear that it is taxable to the trustee, and not to the petitioner. Writ of certiorari to issue.