In Re Appeal of Newton Packing Co. , 279 Mich. 139 ( 1937 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] On August 29, 1935, Newton Packing Company, a Michigan corporation, filed with the commissioner of Michigan corporation and securities commission its annual report showing its condition as of December 31, 1934, as required by Act No. 327, § 82, Pub. Acts 1931 (as last amended by Act No. 194, Pub. Acts 1935), accompanied by a filing fee of $2 and a privilege fee of $250 payable by the corporation for the tax year beginning August 31, 1935. The corporation computed the tax on the basis of 2 1/2 mills upon each dollar of its paid-up capital of $100,000 which was claimed to be the amount in existence at the time of filing its report. Prior to August 28, 1935, the paid-up capital as well as capital stock of the corporation amounted to $300,000. However, on August 28, 1935, by amendment to its articles, the capital stock was duly reduced to $100,000 and a notation to this effect was attached to the report. It also stated that a certificate of reduction of the capital stock had been filed with the secretary of State on August 28, 1935. The corporation does not claim that its fiscal year differs from the calendar year.

The commissioner refused to accept a privilege fee of $250 on the ground that the paid-in capital on December 31, 1934, was $300,000 and the privilege fee accordingly was $750. An appeal was taken to the corporation tax appeal board which upheld the contention of the commissioner, and thereupon this appeal was taken.

Section 10140, 2 Comp. Laws 1929 (as amended by Act No. 13, Pub. Acts 1933 [Ex. Sess.]) provides for an annual privilege fee to be paid by profit corporations "upon each dollar of its paid-up capital and surplus." The sole question to be determined is: As of what date should the item of "paid-up capital" be taken, there being no question of surplus involved, as the report showed a deficit. It is true that 2 Comp. Laws 1929, § 10140 (as amended by Act No. 13, Pub. Acts 1933 [Ex. Sess.]) does not fix the date for the computation of these items and it becomes necessary to look to other sections of the corporation law. In the report required by Act No. 327, § 82, Pub. Acts 1931 (as last amended by Act No. 194, Pub. Acts 1935), the corporation is required to give:

"(m) A complete and detailed statement of the assets and outstanding liabilities of the corporation as shown by the books of such corporation at the close of business on the thirty-first day of December or upon the date of the close of its fiscal year, next preceding."

In subdivision (i) of this same section, the corporation is required to state "the amount of capital stock paid in," but no date is fixed in reference to this item. Section 10143, 2 Comp. Laws 1929, as amended by Act No. 102, Pub. Acts 1935, defines "surplus" as the difference between assets and liabilities plus paid-up capital. Inasmuch as by Act No. 327, § 82, subd. (m), Pub. Acts 1931 (as last amended by Act No. 194, Pub. Acts 1935), the "assets and outstanding liabilities" are to be reported as of December 31st next preceding, it is clear that, for the purpose of computing the annual privilege fee, the "surplus" item is to be taken as of December 31st next preceding. This being so, it must have been the intention of the legislature that paid-up capital be reported as of December 31st next preceding.

This conclusion is not only in accord with the practice of the commissioner for a long period of years, but is fortified by the legislative history of Act No. 85, § 7, Pub. Acts 1921, as amended, which, though repealed by Act No. 140, Pub. Acts 1927, provided that:

"SEC. 7. Every corporation, for profit, whether domestic or foreign, authorized or admitted to do business within this State * * * shall * * * annually * * * file a report with the secretary of State^* showing its condition at the close of business upon the thirty-first day of December or upon the date of the close of its fiscal year next preceding the filing of such report."

Under the present law, the only report required is that found in Act No. 327, § 82, Pub. Acts 1931 (as last amended by Act No. 194, Pub. Acts 1935), and we believe it was the intention of the legislature that the information furnished in said report should show the condition of the corporation as of December 31st next preceding for purposes of computing the privilege fee.

Appellant, however, contends that any reference to Act No. 327, § 82, Pub. Acts 1931 (as last amended by Act No. 194, Pub. Acts 1935), for the purpose of computing the privilege tax is violative of Const. 1908, art. 10, § 6, which provides:

"Every law which imposes, continues or revives a tax shall distinctly state the tax, and the objects to which it is to be applied; and it shall not be sufficient to refer to any other law to fix such tax or object."

There is no merit in this contention. Section 10140, 2 Comp. Laws 1929, as amended by Act No. 13, Pub. Acts 1933 [Ex. Sess.], is self-sufficient insofar as it states "the tax and the objects to which it is to be applied." The reference to the report required by Act No. 327, § 82, Pub. Acts 1931 (as last amended by Act No. 194, Pub. Acts 1935) is to assist the secretary of State^* in the purely ministerial duty of computing the tax. The reference is further justified inasmuch as 2 Comp. Laws 1929, § 10140, as amended, specifically refers to Act No. 327, § 82, Pub. Acts 1931. Likewise, Act No. 327, § 82, subd. (o), Pub. Acts 1931 (as amended by Act No. 194, Pub. Acts 1935), discloses that the information to be given in the report is for the purpose of enabling the secretary of State to compute the annual privilege fee.

The decision of the corporation tax appeal board is affirmed but without costs, the question being a public one.

FEAD, C.J., and NORTH, WIEST, BUSHNELL, SHARPE, POTTER, and CHANDLER, JJ., concurred.

^* The powers and duties of the secretary of State with respect to formation, organization, regulation and control of corporations and fees, taxes and charges paid by them under Act No. 327, Pub. Acts 1931, as amended, and Act No. 85, Pub. Acts 1921, as amended [2 Comp. Laws 1929, §§ 10136-10147, as amended] have been transferred to the corporation and securities commission by. Act No. 13, Pub. Acts 1935. — REPORTER.

^* See note ante, 143. — REPORTER.