DocketNumber: No. 7,268.
Citation Numbers: 33 P.2d 563, 97 Mont. 13
Judges: MR. JUSTICE ANDERSON delivered the opinion of the court.
Filed Date: 5/12/1934
Status: Precedential
Modified Date: 1/12/2023
I concur in the result reached by the majority opinion in condemning the surtax, but dissent from the result reached as to the other provisions of *Page 36 Chapter 40, Laws of the Extraordinary Session of the Twenty-third Legislative Assembly.
For the reasons stated in my dissenting opinion in O'Connell
v. State Board of Equalization,
The mere fact that of two rivals in business one is incorporated and the other not, furnishes no justification for penalizing the latter by a tax from which the former is exempt. Our fundamental law declares against such a policy (sec. 7, Art. XII, Montana Constitution). This section provides: "The power to tax corporations or corporate property shall never be relinquished or suspended, and all corporations in this state, or doing business therein, shall be subject to taxation for state, county, school, municipal and other purposes, on real and personal property owned or used by them and not by this Constitution exempted from taxation." This section does not relate to property taxes only but by its express language embraces "the power to tax corporations." The meaning of this section, when applied to a property tax, was stated by this court to be that the property of corporations shall bear its equal share of the burden of taxation. (Northwestern Mut. Life Ins.Co. v. Lewis and Clarke County,
Also, our Act conflicts with the federal Constitution in that it denies to individuals the equal protection of the laws as against competing corporations. (Sec. 1, Art. XIV, United States Constitution.)
The majority, hard pressed to find some reason for the hostile discrimination patent on the face of the Act, resort to an address of Harold M. Groves, Professor of Economics, of the University of Wisconsin, reported in the March, 1934, issue of the "Tax Magazine." He in effect states that it is his opinion that the states will sooner or later realize that a tax on corporations is not a satisfactory way to tax the stockholder, and that dividends should be taxed to the stockholder. He points out, however, that of the twenty-nine states having income taxes, only one taxes individuals only. The state which he names is the state of Delaware, the home and haven of corporations doing business elsewhere. He apparently overlooked the fact that the Montana law also does so. The Delaware Act does not appear to have been passed upon by the courts of that state.
It is to be noted also that Professor Groves does not suggest the remedy. He does not suggest that corporations be exempt. His complaint is that a tax on corporations is not a satisfactory way to impose a tax on stockholders. It is entirely possible that his view is that the corporation as well as the stockholder should be taxed in such a manner that all the corporate income shall be once taxed. After the statement quoted in the majority opinion, this eminent professor in *Page 38 speaking of an income tax on corporations went on to say: "If the corporation is located in one place and the stockholder in another as is frequently the case, the stockholder may contribute nothing to the community in which he lives." It is immaterial that the stockholder may contribute nothing to the community in which he lives. If the corporation is taxed, the stockholder contributes to the community in which he enjoys the privilege of making an income through the corporate activities by a proportionate reduction in dividends, and that is the community which rightfully should receive the contribution in the way of an income tax. An income tax on the corporation as well as the stockholder could be so framed as to obviate the difficulty pointed out by Professor Groves and yet not result in double or unequal taxation.
The majority opinion also makes reference to the report of the Wisconsin State Tax Commission, in which that commission pointed out that under the laws of that state a person receiving as his sole income $500 as dividends on corporate stock has the same rate of taxation applied against it as the person who receives $500,000 annually from the same source. That objection is not eliminated by exempting corporations. Under our Act the same rate of taxation is applied to all incomes. Thus one receiving $500 of taxable income has the same rate of taxation applied against it as is applied against the first $500 of taxable income received by the one who receives an income of $500,000. If A has a taxable income of $6,500 the $6,000 receives the same rate of taxation as the first $6,000 received by B, who receives a taxable income of $500,000. And the $500 received by A in excess of the first $6,000 of taxable income takes the same rate of taxation as all that received by B in excess of $6,000. So that, if there be merit in the report of the Wisconsin State Tax Commission, the situation is not remedied by exempting corporations.
If we concede that it is competent for the legislature to exempt corporations on the theory that the burden is properly distributed by collecting the tax from the individuals receiving dividends, still this Act cannot stand because of the *Page 39 discrimination between resident and nonresident stockholders, and because of the lack of machinery to collect the tax from absentee stockholders, and because corporations do not distribute as dividends all their income, as pointed out in my dissenting opinion in the O'Connell Case.
Since I think the whole Act must fall, I express no opinion as to the other points discussed in the opinion of Mr. Justice Anderson, except that I do not agree with his attempt to distinguish this case from that of Byrne v. Fulton Oil Co.,
I agree with the conclusion stated in the opinion of Mr. Justice Anderson on the subject of the retroactive effect of Chapter 40, but I think in arriving at that conclusion theByrne, Anderson and Forbes Cases should be expressly overruled so far as they treat of this point.
Since I think the whole of Chapter 40 is invalid, I concur in the result announced in the opinion of Mr. Justice Anderson so far as it condemns the surtax. I think the court should go further and condemn the whole Act and overrule the opinion inO'Connell v. State Board of Equalization, supra. *Page 40