The People v. Rosehill Cemetery Co.

The Rosehill Cemetery Company was incorporated in 1859 by a special act of the General Assembly which granted it a perpetual right to operate and maintain a cemetery. The company was organized and is operated for the private profit of the owners of its "certificates of interest," and pays dividends on such certificates from time to time. Section 5 of the charter provides: "All lots sold for burial purposes by the cemetery company * * * and all estate, real and personal, held by the company, actually used by the corporation for burial purposes, or for the general uses of lot holders or subservient to burial uses and which shall have been platted and recorded as cemetery grounds, shall be likewise exempt as above."

It is a settled rule in this State that in determining whether property is included within a statutory tax exemption the act must be strictly construed. The burden of proof is upon the party claiming the exemption and all doubts must be resolved against the claim for exemption. (People v. University of Illinois,357 Ill. 369.) In Rosehill Cemetery Co. v. Kern, 147 Ill. 483, where this court had before it the same charter provision, it was held that land owned by the cemetery, platted for burial purposes but not yet actually devoted to burial uses, was not exempt from taxation by section 5. We said that to bring the land within the meaning of the charter provision "it must have been * * * actually used for burial purposes, or for the general use of lot holders, or subservient to burial purposes * * * not subservient to sodding grounds, or ornamenting graves, or draining grounds, or feeding horses used in the cemetery; subservient, not to the general purposes of the cemetery, but to one thing, — burial uses." The opinion adopted in the present case in effect overrules this former opinion where the charter provisions of this same cemetery were expressly construed.

The cemetery company contends that its capital stock represents the total assets of the corporation, tangible and intangible, and, therefore, it is actually used for burial purposes within the exemption. It is true that the capital stock of Illinois corporations, for purposes of taxation, is the sum of the whole property of the corporation, from which the value of all tangible property is deducted to avoid double taxation. Essentially, the capital stock tax is a tax imposed upon all the intangible property of the corporation, including the value of the corporate franchise, (Pacific Hotel Co. v. Lieb, 83 Ill. 602; Ohio andMississippi Railroad Co. v. Weber, 96 id. 443;) and if all of such property belonging to the Rosehill Cemetery Company is used for the three purposes enumerated in section 5, its capital stock must be exempt from taxation. But not all of the intangible property of the Rosehill Cemetery Company is devoted to those purposes. For example, accounts receivable, valued, in 1932, at $142,246.12, are not actually used for burial purposes, or for the general uses of lot holders or subservient to burial uses. This item is an asset most of which will eventually find its way to the owners of the certificates of interest in the corporation in the form of dividends or as an addition to the earned surplus. Neither does the balance sheet item, "Mortgage foreclosure on real estate," fall within the exemption provision. It is a portion of the assets of the corporation made up of depreciated securities withdrawn from the "perpetual care fund" and replaced by sound securities from other property of the corporation. Should other investments in the "perpetual care fund" depreciate, restitution may be made out of the assets held in this real estate mortgage foreclosure fund. But until an investment in the perpetual care fund becomes worthless, the real estate mortgage assets belong to the owners of the corporation and are held for their benefit. These two items — accounts receivable and "mortgage foreclosure on real estate" — demonstrate that the capital stock of the cemetery company is not entirely composed of tax-exempt property.

The company further insists and the majority opinion holds that its capital stock cannot be taxed without taxing its franchise, and that section 5 exempts the franchise from taxation. This reasoning proceeds from a misconceived idea of what their franchise really is. Although the franchise permits operation of a cemetery for burial of the dead, the franchise itself is not actually used for burial purposes, or for the general uses of lot holders or subservient to burial uses. (Rosehill Cemetery Co. v.Kern, supra.) Instead, it is a grant of privilege to operate the business of selling burial space for the benefit of the owners of "certificates of interest." By means of this franchise the company has earned profits, part of which have been paid to the owners of its certificates as dividends and the balance used to create an earned surplus of more than half a million dollars. It follows that the capital stock of the Rosehill Cemetery Company is not exempt from taxation by virtue of section 5 of its charter. Of course, any items of property which are specifically exempt by section 5 cannot be included in determining the taxable value of the corporation's capital stock, (Delaware, Lackawannaand Western Railroad Co. v. Pennsylvania, 198 U.S. 341,) but we do not understand the company contends that the capital stock tax levied by the commission in 1933 was erroneously determined.

A further effort was made to avoid the tax by stating that the Rosehill Cemetery Company has no capital stock within the meaning of the revenue laws of 1872 and the Tax Commission act of 1919. The only specific language to which we are referred is found in section 32 of the Revenue act of 1872, (Ill. Rev. Stat. 1937, chap. 120, par. 36,) which provides for the filing of a sworn report by the corporation setting forth "the amount of capital stock authorized" and "the amount of capital stock paid up." The cemetery company admitted by its capital stock tax returns for 1933 that it had $500,000 capital stock fully paid up, divided into 500 shares. The fact that it designated these corporate shares as of "no par value" makes no difference. The company points out that its charter does not authorize capital stock of any specified monetary value and concludes that the statute levying a tax upon the capital stock of corporations, (Ill. Rev. Stat. 1937, chap. 120, pars. 1, 3,) was not intended to be applied to it. I believe this conclusion is unwarranted. The charter authorizes issuance of five thousand "certificates of interest." Each certificate represents ownership of one five-thousand part of the assets of the company and is similar to a share of no par stock. The company's balance sheet since 1899 has shown a paid-in capital of $500,000. Moreover, the capital stock tax is not a tax upon each share of authorized stock or upon the amount of paid-in capital; it is a tax measured by the aggregate property of the corporation with certain well-defined deductions and exemptions.(Pacific Hotel Co. v. Lieb, supra.) The fact that the charter did not contemplate issuance of capital stock of a specified monetary value does not permit the company to escape taxation of its property. Neither can it be properly said that because there was no provision for a capital stock tax until 1872, the legislature intended the Rosehill Cemetery Company, organized in 1859, to be exempt. On such a theory, any corporation organized prior to 1872 would not be subject to a capital stock assessment. Defendant's charter does not forever exempt from taxation the corporation's property held for any and all purposes — only that held for the purposes enumerated in section 5 is exempt. Any corporation is subject to subsequent legislation lawfully enacted, so long as the provisions of its charter are not thereby impaired.Pennsylvania Railroad Co. v. Miller, 132 U.S. 75.

The failure of the State Tax Commission to impose a capital stock tax for any of the sixty years preceding 1933 has not, as contended, established an administrative interpretation of the exemption clause which the courts will not disturb. An erroneous administrative interpretation of an unambiguous statute can never prevent its correct interpretation and application. (Whittemore v. People, 227 Ill. 453.) Omission or failure to tax cannot establish an exemption from taxation.

For these reasons I cannot agree with the views and conclusions of the adopted opinion.