Senior v. Braden ( 1935 )

Mr. Justice McReynolds

delivered the opinion of the Court.

January 1, 1932 — tax listing day — § 5328-1, the Ohio General Code¹ provided that all investments and other intangible property of persons residing within the State should be subject to taxation. Section 5323 so defined “ investment ” as to include incorporeal rights of a pecuniary nature from which income is or may be derived, including equitable interests in land and rents and royalties divided into shares evidenced by transferable certificates. Section 5638 imposed upon productive investments a tax amounting to five percentum of their income yield; and § 5839 defined “ income yield ” so as to include the aggregate income paid by the trustee to the holder, &c. Pertinent portions of §§ 5388 and 5389 are in the margin.²

Appellant owned transferable certificates showing that he was beneficiary under seven separate declarations of trust, and entitled to stated portions of rents derived from specified parcels of land — some within Ohio, some without. On account of these beneficial interests he received $2,231.29 during 1931. The lands are adequately described in the margin.³

The tax officers of Hamilton County, where appellant resided, threatened to assess these beneficial interests, and then to collect a tax of five percentum of the income therefrom. To prevent this, he instituted suit in the Common Pleas Court. The petition asked that § 5323, General Code, be declared unconstitutional and that appellees be restrained from taking the threatened action. The trial court granted relief as prayed; the Court of Appeals reversed and its action was approved by the Supreme Court.

With commendable frankness counsel admit that under the Fourteenth Amendment the State has “ no power to tax land or interests in land situate beyond its borders; nor has it power to tax land or interests in land situate within the State in any other manner than by uniform rule according to value.” Consequently, they say, “ if the property of appellant, which the appellees seek to tax in this case, is land or interest in land situate within or without the State, their action is unconstitutional and should be permanently enjoined.”

The validity of the tax under the Federal Constitution is challenged. Accordingly we must ascertain for ourselves upon what it was laid. Our concern is with realities, not nomenclature. Moffitt v. Kelly, 218 U. S. 400, 404, 405; Macallen Co. v. Massachusetts, 279 U. S. 620, 625, 626; Educational Films Corp. v. Ward, 282 U. S. 379, 387; Lawrence v. State Tax Comm’n, 286 U. S. 276, 280. If the thing here sought to be subjected to taxation is really an interest in land, then by concession the proposed tax is not permissible. The suggestion that the record discloses no federal question is without merit.

Three of the parcels of land lie outside Ohio; four within; they were severally conveyed to trustees. The declaration of trust relative to the Clark-Randolph Building Site, Chicago, is typical of those in respect of land beyond Ohio; the one covering East Sixth Street property, Cleveland, is typical of those where the land lies in Ohio, except Lincoln Inn Coürt, Cincinnati. Each parcel has been assessed for customary taxes in the name of legal owner or lessee according to local law, without deduction or diminution because of any interest claimed by appellee and others similarly situated.

The trust certificates severally declare — That Max Senior has purchased and paid for and is the owner of an undivided 340/1275ths interest in the Lincoln Inn Court property; that he is registered on the books of the Trustee as the owner of 5/3250ths of the equitable ownership and beneficial interest in the Clark Randolph Building Site, Chicago; that he is the owner of 6/1050ths of the equitable ownership and beneficial interest in the East Sixth Street property, Cleveland. In each declaration the Trustee undertakes to hold and manage the property for the use and benefit of all certificate owners; to collect and distribute among them the rents; and in case of sale to make pro-rata distribution of the proceeds. While certificates and declarations vary in some details, they represent beneficial interests which, for present purposes, are not substantially unlike. Each trustee holds only one piece of land and is free from control by the beneficiaries. They are not joined with it in management. See Hecht v. Malley, 265 U. S. 144, 147.

The State maintains, that appellant’s interest is “ a species of intangible personal property consisting of a bundle of equitable choses in action because the provisions of the agreements and declarations of trust of record herein have indelibly and unequivocally stamped that character upon it by giving it all the qualities thereof for purposes of the management and control of the trusts. At the time the trusts were created, the interests of all the beneficiaries consisted merely of a congeries of rights etc., and such was the interest acquired by appellant when he became a party thereto. . . . The rights of the beneficiary consist merely of claims against the various trustees to the pro rata distribution of income, during the continuance of the trusts, and to the pro rata distribution of the proceeds of a sale of the trust estates upon their termination.”

Appellant submits that ownership of the trust certificate is evidence of his interest in the land, legal title to which the trustee holds. This view was definitely accepted by the Attorney General of Ohio in written opinions Nos. 3640 and 3869 (Opinions 1926, pp. 375, 528) wherein he cites pertinent declarations by the courts of Ohio and of other states. See also 2 Cincinnati Law Rev. 255.

The theory entertained by the Supreme Court concerning the nature of appellant’s interests is not entirely clear. The following excerpts are from the headnotes of its opinion which in Ohio constitute the law of the case:

“ Land trust certificates in the following trusts [the seven described above] are mere evidences of existing rights to participate in the net rentals of the real estate being administered by the respective trusts.”

“Ascribing to such certificates all possible virtue, the holder thereof is at best the owner of equitable interests in real estate divided into shares evidenced by transferable certificates. Sec. 5323, General Code (114 Ohio Laws 715) does not provide for a tax against the equitable interests in land but does provide a tax against the income derived from such equitable interests.”

Apparently no opinion of any court definitely accepts the theory now advanced by appellees, but some writers do give it approval because of supposed consonance with general legal principles. The conflicting views are elaborated in articles by Professor Scott and Dean Stone in 17 Columbia Law Review (1917) at pp. 269 and 467.

Maguire v. Trefry, 253 U. S. 12, much relied upon by appellees, does not support their position. There the Massachusetts statute undertook to tax incomes; the securities (personalty) from which the income arose were held in trust at Philadelphia; income from securities taxable directly to the trustee was not within the statute. The opinion accepted and followed the doctrine of Blackstone v. Miller, 188 U. S. 189, and Fidelity & Columbia Trust Co. v. Louisville, 245 U. S. 54. Those cases were disapproved by Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204. They are not in harmony with Safe Deposit & Trust Co. v. Virginia, 280 U. S. 83, and views now accepted here in respect of double taxation. See Baldwin v. Missouri, 281 U. S. 586; Beidler v. South Carolina Tax Comm’n, 282 U. S. 1; First National Bank v. Maine, 284 U. S. 312.

In Brown v. Fletcher, 235 U. S. 589, 597, 599, we had occasion to consider the claim that a beneficial interest in a trust estate amounts to a chose in action and is not an interest in the res, subject of the trust. Through Mr. Justice Lamar we there said:

“ If the trust estate consisted of land it would not be claimed that a deed conveying seven-tenths interest therein was a chose in action within the meaning of § 24 of the Judicial Code. If the funds had been invested in tangible personal property, there is, as pointed out in the Bushnell case [Bushnell v. Kennedy, 9 Wall. 387, 393], nothing in § 24 to prevent the holder by virtue of a bill of sale from suing for the ‘ recovery of the specific thing or damages for its wrongful caption or detention.’ And if the funds had been converted into cash, it was still so far property — in fact, instead of in action — that the owner, so long as the money retained its earmarks, could recover it or the property into which it can be traced, from those having notice of the trust. In either case, and whatever its form, trust property w,as held by the Trustee, — not in opposition to the cestui que trust so as to give him a chose in action, but — -in possession for his benefit in accordance with the terms' of the testator’s will. . ,

“ The beneficiary here had an interest in and to the property that was more than a bare right and much more than a chose in action. For he had an admitted and recognized fixed right to the present enjoyment of the estate with a right to the corpus itself when he reached the age of fifty-five. His estate in the property thus in the possession of the Trustee, for his benefit, though defeasible, was alienable to the same extent as though in his own possession and passed by deed. Ham v. Van Orden, 84 N. Y. 257, 270; Stringer v. Young, Trustee, 191 N. Y. 157; 83 N. E. 690; Lawrence v. Bayard, 7 Paige 70; Woodward v. Woodward, 16 N. J. (Eq.) 83, 84. The instrument by virtue of which that alienation was evidenced, — whether called a deed, a bill of sale, or an assignment, — was not a chose in action payable to the assignee, but an evidence of the assignee’s right, title and estate in and to property.”

The doctrine of Brown v. Fletcher is adequately supported by courts and writers. Narragansett Mutual Fire Ins. Co. v. Burnham, 51 R. I. 371; 154 Atl. 909; Bates v. Decree of Court, 131 Me. 176; 160 Atl. 22; Bogert, Handbook of the Law of Trusts, 430; 3 Pomeroy Equity Jurisprudence, Fourth Edition, 1928, § 975, p. 2117; 17 Columbia Law Review, 269, 289. We find no reason for departing from it.

The challenged judgment must be

Reversed.

1 By Act of June 29, 1931 (114 Laws p. 714) providing for levy of taxes on intangible property etc., the Ohio General Assembly amended §§ 5323, 5324, 5325, 5326, 5327, 5328, 5360, 5382, 5385, 5386, 5388, 5389 of the General Code and added supplemental §§ 5325-1, 5328-1, and 5328-2.

2 “ Sec. 5388. * * * Excepting as herein otherwise provided, personal property shall be listed and assessed at seventy per centum of the true value thereof, in money, on the day as of which it is required to be listed, or on the days or at the times as of which it is required to be estimated on the average basis, as the case may be. Deposits not taxed at the source shall be listed and assessed at the amount thereof in dollars on the day as of which they are required to be listed. Moneys shall be listed and assessed at the amount thereof in dollars on hand on the day as of which they are required to be listed. In listing investments, the amount of the income yield of each for the calendar year next preceding the date of listing shall, excepting as otherwise provided in this chapter, be stated in dollars and cents and the assessment thereof shall be at the amount of such income yield; but any property defined as investments in either of the first two subparagraphs of section 5323 of the'General Code which has yielded no income during such calendar year shall be listed and assessed as unproductive investments, at the true value thereof, in money, on the day as of which such investments are required to be listed. . . .

“ Sec. 5389. * * * As used in Section 5388 of the General Code and elsewhere in this chapter, the ‘ true value in money ’ of any property means the usual selling price thereof at the time or times and place as of which it is required to be listed. . . .

“ ‘ Income yield ’ as used in section 5388 of the General Code and elsewhere in this title means the aggregate amount paid as income by the obligor, trustee or other source of payment to the owner or owners, or holder or holders of an investment, whether including the taxpayer or not, during such year, and includes the following: ... in the case of equitable interests, the cash distributions of income so made. . . .”

3 Lincoln Inn Court, Cincinnati, Ohio; Clark-Randolph Building Site, Chicago, Illinois; Woman’s City Club, Cincinnati, Ohio; Rockefeller Building, Cleveland, Ohio; Insurance Exchange Building, Boston, Massachusetts; City National Bank Building, Omaha, Nebraska; and Fidelity Mortgage Company, Cleveland, Ohio.