Nelson v. Watson , 114 Fla. 806 ( 1933 )

It is clear that the statute in question places no tax on oral contracts. The pertinent portion of the statute, as applying to this case, is quoted in the majority opinion. It shows that the Legislature has provided that a ten-cent stamp shall be affixed to all written obligations to pay money on each $100.00 of the indebtedness or obligation evidenced thereby. Under this portion of the statute, no stamps need be affixed to the instrument here in question unless it is either a written obligation to pay money, or a mortgage which incorporates the certificate of indebtedness not otherwise shown in a separate instrument.

The contract involved in this case is a lease of personal property. It provides that the lessee has paid a certain fixed sum as the initial rental of the article in question for the first month of the lease, and that thereafter, in the event the lessee desires to continue in possession of the chattel, he shall pay a certain fixed sum as rent. He is given the option to either surrender up the property at the end of the first month or to rent the same at a certain fixed sum payable monthly in advance. The liability to pay the rent thus depends upon the option or election of the lessee. If he desires to surrender possession of the chattel, there is no obligation on his part to pay the lessor anything. The contract specifically provides that it contains "no obligation to pay money either for the price or rental of said goods, and any default in or failure to pay said rent shall only entitle the lessor under this contract to retake said property." This lease agreement is not a conditional sales contract; neither is it a mortgage. There is of course, a vital distinction between the two. The title to the property not having passed to the lessee, he has nothing to mortgage.

Under the holdings of this Court, the vendor under a conditional sales contract has three remedies against the conditional vendee. He may bring an action to recover the purchase price, in which case he loses his right to pursue the property. Or he may bring an action of replevin to recover possession of the personal property thus conditionally sold, but the title to which he retains until the purchase price is paid. Or he may go into a court of equity to establish a lien on the property for the amount of the unpaid purchase price. See Voges v. Ward, 123 So.2d 785, 98 Fla. 304; Malone v. Meres,91 Fla. 709, 109 So.2d 677; Hilton v. Sinclair, 93 Fla. 1121, 113 So.2d 568; American Process Co. v. Fla. Brick Co., 56 Fla. 116, 47 So.2d 942, 16 Ann. Cases 1054; Holmberg v. Hardee, 108 So.2d 211, 90 Fla. 787; Nelson v. Stockton Mfg. Co., 130 So.2d 764, 100 Fla. 791.

Under the contract involved in this case the lessor has only one remedy; that is, the right to retake the property. The contract provides that he has no right of action against the lessee for damages, and his sole remedy under this contract is that of replevin. So this is not a conditional sales contract.

Nowhere in the contract is the lessee required to pay any sum of money. He is given the option to purchase the chattel described in the contract by paying the stated value set forth therein. However, the exercise of this option is left solely to the discretion of the lessee. The rent for the first month of the lease is paid in advance. The payment is made at the time the contract is entered into and no obligation is created on the part of the lessee to make any further payment. The rent for the second month does not constitute a debt as no obligation of any kind can arise until after the lessee has elected to retain possession and rent the property for the second month. The contract does not state that the lessee must pay any sum as rent, but merely fixes the rate of the monthly rental in the event the lessee later exercises an option to continue to rent the chattel. If he elects to surrender the chattel at the end of the first month, he is under no obligation, either legally or morally, to pay the lessor anything.

Under the statute, the stamp should be affixed if the document is of such a nature as to require a stamp at the time of its execution. But at the time of the execution of this lease agreement, there was no obligation on the part of the lessee, created by the written contract, to pay any money to the lessor. Stamp taxes such as these, where they are applicable, accrue and become due when the instrument is executed. As the contract here in question, as drawn and executed, does not come within the purview of the statute, no stamps were due the State at the time of its execution. This Court has often held that statutes conferring authority to impose taxes must be construed strictly in favor of the tax payer and against the grantee of the power. Atlantic Coast Line Railway Co. v. Amos, 94 Fla. 588, 115 So.2d 315, and cases cited. The tax imposed under this statute, is not a tax on property but is an excise tax, a tax imposed upon certain kinds of documents or instruments in writing. The right to acquire and possess property cannot alone be made the object of an excise tax, nor can such a tax be laid upon the mere right to possess the fruits thereof. Jerome H. Sheip Co. v. Amos, 130 So.2d 699, 705; 26 R. C. L. 236. On the other hand, the use of property may be the object of an excise tax, and that such excise tax may take the form of a stamp tax on documents of certain classes is well settled. Thus, the excise tax provided by this statute must be construed as a tax imposed upon the document itself. Therefore the sole question before us is whether or not the written document involved in this case is a written obligation to pay money, or a mortgage which incorporates the indebtedness not shown in a separate instrument; for it could not possibly fall within any of the other classes of instruments described in the statute. Chapter 15787.

In determining this question, the Court cannot look beyond the document itself to determine its character. Thus the stipulation entered in this case and set out in the majority opinion, is of no service. We cannot look to parole evidence to determine what the intention of the parties was in executing this document. To hold otherwise would lead to uncertain consequences in the administration of the statute. The stipulation as to the facts, filed in this case, indicates that the real contract between the parties, orally entered into, was in the nature of conditional sales contract, and was quite different from the contract actually reduced into writing and executed; and that the probabilities are that the form of written contract which was actually executed was adopted in order to evade the payment of a stamp tax. But this does not change the principle above alluded to.

"Whatever an instrument purports on its face to be determines whether or not it must be stamped. As against the objection that the adoption of a certain form of instrument might constitute a device to defraud the revenue, it has been declared that the adoption of a rule that the form of the instrument can be disregarded, and its real character be investigated for the purpose of determining the stamp duty would produce difficulties and inconveniences vastly more injurious than any fraud that might be perpetrated. So, if the device is carried out by the means of legal forms, it is subject to no legal censure. To illustrate: The Stamp Act of 1862 imposed a duty of two cents upon a bank check, when drawn for an amount not less than $20.00. A careful individual, having the amount of $20.00 to pay, pays the same by handing to his creditor two checks of $10.00 each. He thus draws checks in payment of his debt to the amount of $20.00, and yet pays no stamp duty. This practice and this system he pursues habitually and persistently. While his operations deprive the government of the duties it might reasonably expect to receive, it is not perceived that the practice is open to the charge of fraud. He resorts to devices to avoid the payment of duties, but they are not illegal. He has the legal right to split up his evidences of payment and thus avoid the tax." 23 R. C. L. 994; citing U.S. v. Isham, 17 Wall. 492; 21 Law Ed. 728.

In the above cited case of U.S. v. Isham, the Supreme Court of the United States discussed this question thoroughly, and among other things said:

"The liability of an instrument to a stamp duty, as well as the amount of such duty, is determined by the form and face of the instrument, and cannot be affected by proof of facts outside of the instrument itself." * * *

"It is said that the transaction proved upon the trial in this case, is a device to avoid the payment of a stamp duty, and that its operation is that of a fraud upon the revenue. This may be true, and if not true in fact in this case, it may well be true in other instances. To this objection there are two answers:

"1. That if the device is carried out by the means of legal forms, it is subject to no legal censure." * * *

"Another answer may be given to the objection more comprehensive in its character. It is this: that the adoption of a rule that the form of the instrument can be disregarded, and its real character be investigated for the purpose of determining the stamp duty, would produce difficulties and inconveniences vastly more injurious than that complained of."

"Since stamps are imposed, not on transactions but on documents, liability of an instrument to stamp duty, as well as the amount of such duty, is determined by the form and face of the instrument, and cannot be affected by proof of facts outside of the instrument itself." See 33 C. J. 316 and 317 and cases cited.

In Haverty Furniture Co. v. U.S., 286 Fed. 985, it was said:

"The suggestion that the form of contract, with the alteration of it, is an effort to evade the tax, may be laid aside. Where one form of instrument is taxed, and another is not, one may, if he can so satisfactorily transact his affairs, avoid the form that is taxed, and use that which is not. This was held in United States v. Isham, 17 Wall. 496, 21 L.Ed. 728. Under the Revenue Act of 1898 (30 Stat. 448), which laid a tax upon bank checks, a practice was indulged without censure by which, in lieu of a check, an untaxed receipt to the bank for so much money as paid to a named person was issued, and taken up by the bank on presentation. If the instruments here are promissory notes, they are taxable; otherwise, not. As again ruled in Isham's case, the taxability of such an instrument is to be determined by its face alone. Outside facts are of no importance."

So this Court would not be authorized to consider outside facts as to the intention of the parties, but will look at the instrument itself, and since the face of the instrument shows the transaction to be a lease agreement, containing no written obligation to pay money, we cannot hold that it was subject to the tax because the parties intended it to be either a mortgage or a conditional sales contract. It certainly is not on its face either a mortgage or a written obligation to pay money.

I am therefore of the opinion that the petitioner should be discharged from custody.