Security-First National Bank v. Franchise Tax Board

347 [ 46 S.Ct. 135 , 70 L.Ed. 295 ].) Section 5219 of the Revised Statutes of the United States ( 12 U.S.C. § 548 ) sets forth the four methods by which a state may tax those banks. The fourth method, which has been adopted by California, is to tax them “according to or measured by their net income.” When this method is used, the “entire net income received from all sources” may be included, but the rate shall not be higher than the rate assessed upon other financial corporations “nor higher than the highest of the rates assessed by the taxing state upon mercantile, manufacturing, and business corporations doing business within its limits.” It is settled that taxation of personal property, which is not a method of taxation permitted in section 5219, is improper. (Owensboro Nat. Bank v. Owensboro, 173 U.S. 664 , 668 et seq. [ 19 S.Ct. 537 , 43 L.Ed. 850 ]; First Nat. Bank v. City & County of San Francisco, 129 Cal. 96 , 97-98 [ 61 P. 778 ].) Plaintiffs contend that the California act imposes a tax rate higher than is permitted by section 5219 and that it results in taxing their personal property.

Section 5219 is designed to allow the states considerable freedom in working out an equitable tax system, and the purpose of the limitation on the rate which may be imposed is only to prohibit discrimination in practical operation against national banks as a class. (Tradesmens Nat. Bank v. Oklahoma Tax Com., 309 U.S. 560 , 567-568 [ 60 S.Ct. 688 , 84 L.Ed. 947 ].) In determining whether a state tax on such banks according to or measured by net income violates the limitation, consideration must be given to the state tax structure as a whole, not merely to taxes of the kind imposed upon those banks. The state tax on them is valid so long as the resulting burden does not exceed the burden to which state banks, mercantile, business, manufacturing, and financial corporations are subject. (Tradesmens Nat. Bank v. Oklahoma Tax Com., supra, 309 U.S. 560 , 567-568; see Franchise Tax Board v. Superior Court, 36 Cal.2d 538 , 551-552 [ 225 P.2d 905 ]; H.A.S. Loan Service, Inc. v. McColgan, 21 Cal.2d 518 , 520 [ 133 P.2d 391 , 145 A.L.R. 349 ].) In Tradesmens National Bank, the court, in upholding the validity of a bank franchise tax against a claim of discrimination, took into consideration not only franchise taxes imposed on nonfinancial corporations but also their income and ad valorem taxes.

Section 4a is designed to impose on banks a fair and equitable tax within the restrictions of section 5219, and the lack of any discrimination against banks is clear when the

advantage from their personal property exemption. The legislative determination that the amount of taxes to be paid by nonfinancial corporations should be obtained partly by personal property taxes and partly by franchise taxes does not prevent the state from placing an equal tax burden on national banks solely in the form of franchise taxes.

It has been held in an analogous situation that, although a state may not tax the franchise of a foreign corporation whose activities in the state constitute exclusively interstate commerce, a special tax at a rate equivalent to the franchise tax may be imposed on the foreign corporation in the form of a net income tax from which corporations paying the franchise tax are exempt. (West Publishing Co. v. McColgan, 27 Cal.2d 705 , 707 et seq. [ 166 P.2d 861 ], aff’d 328 U.S. 823 [ 66 S.Ct. 1378 ] 90 L.Ed. 1603 ]; cf. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450 , 457 et seq. [ 79 S.Ct. 357 , 3 L.Ed.2d 421 , 67 A.L.R.2d 1292 ] [Citing with approval and quoting from the West Publishing Co. ease]; Gregg Dyeing Co. v. Query, 286 U.S. 472 , 478 et seq. [ 52 S.Ct. 631 , 76 L.Ed. 1232 , 84 A.L.R. 831 ].) Similarly, the fact that a state may not apply its sales tax to sales of property in interstate commerce or outside the state does not prevent it from imposing a use tax, at the same rate, on use or storage in the state and exempting from that tax all property which has been previously subjected to the sales tax. (Southern Pacific Co. v. Gallagher, 306 U.S. 167 , 171-172 [ 59 S.Ct. 389 , 83 L.Ed. 586 ].) It is apparent that these cases go much further than we are required to go here since the taxes there under consideration were upheld even though the taxpayer was required to pay the same amount as if the tax from which he was exempt had been applied. The amount of tax the banks are required to pay is not the same as the amount they would have paid had their personal property been taxed; there is no relationship between the franchise tax imposed on them and the personal property they own.

Decisions relied upon by plaintiffs are distinguishable from the present cases because in all of them there was a relationship between the amount to be paid under the tax held invalid and the amount of property or income as to which the taxpayer was entitled to an exemption. Moreover, all these decisions differ from the cases before us in other significant respects. In Missouri v. Gehner, 281 U.S. 313 [ 50 S.Ct. 326 , 74 L.Ed. 870 ], National Life Ins. Co. v. United States, 277 U.S. 508 [ 48 S.Ct. 591 , 72 L.Ed. 968 ], and Miller v. City of Milwaukee,

272 U.S. 713 [ 47 S.Ct. 280 , 71 L.Ed. 487 ], the exemption which the invalid tax was held to infringe on, namely, an exemption of governmental securities, was designed to favor these securities over other property in the matter of taxation, while the purpose of the exemption of national banks from personal property taxes, as we have seen, is to prevent the states from using this form of taxing banks, not to relieve them from the duty of paying their share of the tax burden. (See 17 Cal.L.Rev. 456 , 506-507 (1929).) In Frick v. Pennsylvania, 268 U.S. 473 [ 45 S.Ct. 603 , 69 L.Ed. 1058 , 42 A.L.R, 316 ], where the tax was upon the transfer of property at death measured by the amount of the decedent’s property both within and without the state, the measure of the tax was not reasonably related to the privilege taxed insofar as property outside the state was included. The measure of the tax here, net income attributable to California, is, of course, reasonably related to the privilege of engaging in the business of banking in the state. The tax involved in Miller v. Heilbron, 58 Cal. 133 , 140-141, resulted in placing a greater burden on stockholders of national banks than on stockholders of other corporations.

Use of the personal property taxes and the net incomes of nonfinancial corporations in the computation of the bank tax rate does not result in a deprivation of due process or equal protection. It is obvious that in establishing an equitable tax system and setting the rate for a particular class of taxpayers, the Legislature may consider the tax rates applicable to other classes in comparable situations. Section 5219 itself requires that in imposing taxes on national banks according to net income the Legislature must take into account the rates assessed upon nonfinancial corporations. The use of taxes paid by one group of taxpayers in order to establish a rate of tax for another group has been upheld where, as here, the statutory scheme was reasonably designed to obtain equality of tax burdens. (Michigan Central Railroad v. Powers, 201 U.S. 245 , 292 et seq. [ 26 S.Ct. 459 , 50 L.Ed. 744 ]; People v. Keith Railway Equipment Co., 70 Cal.App.2d 339 , 351 et seq. [ 161 P.2d 244 ].) Hoeper v. Tax Commission, 284 U.S. 206 , 215 [ 52 S.Ct. 120 , 76 L.Ed. 248 , 78 A.L.R. 346 ], is readily distinguishable. Under the income tax held invalid there, a husband was required to pay taxes not only on his own income but also on the income of his wife over which he had no control whereas under section 4a the

he was acting in a quasi-legislative capacity. It was stated: “There is no constitutional requirement for any hearing in a quasi-legislative proceeding. ‘Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. If the result in this case had been reached as it might have been by the State’s doubling the rate of taxation, no one would suggest that the Fourteenth Amendment was violated unless every person affected had been allowed an opportunity to raise his voice against it before the body entrusted by the state constitution with the power.’ (BiMetallic Inv. Co. v. State Board of Equalisation, 239 U.S. 441 , 445 [ 36 S.Ct. 141 , 60 L.Ed. 372 ].) ... The banks argue that the tax returns lost whatever privileged status they may have had through their use by the commissioner ‘against’ the banks. . . . An agency performing [a quasi legislative] function does not legislate ‘against’ the taxpayer. . . . The proceedings were in no sense adverse. . . . [They] were subject to legislative control, if desired, through examination of the tax returns by one of its committees.’’ (36 Cal.2d at pp. 548-551.)

There is no sound basis for concluding, as plaintiffs assert, that our decision of the constitutional issue related solely to the administrative hearing, not to the court actions. The inspection order of the trial court was entered in the 1943 refund actions, after the administrative hearing relating to that year had been concluded, and the contention of plaintiffs regarding due process was made with respect to the actions as well as to the hearing. The reasoning used by the court in rejecting that contention was equally applicable to both, and the writ we issued was to prohibit inspection of the original tax returns in the judicial proceedings. There was no reason to discuss the due process question unless the court intended to decide that withholding inspection in those proceedings would not affect the validity of the tax rate.

It must be kept in mind that the denial of access to the original tax returns does not prevent plaintiffs from attacking the propriety of the rate. The nondisclosure pro

visions of section 35 mean merely that plaintiffs “are confronted with the common situation wherein proof of alleged facts is rendered more difficult because of the existence of certain privileged communications, protected as such because underlying public interests and policies outweigh the convenience of a particular litigant.” (Franchise Tax Board v. Superior Court, supra, 36 Cal.2d 538 , 551.) Much material helpful to plaintiffs in determining the accuracy of the rate was made available to them at both the administrative hearings and the trial, and the only information withheld was such that it would have revealed to them, contrary to section 35, the amount of income or the business activities reported by named nonfinaneial corporations. We are satisfied that plaintiffs received all the information they reasonably needed.

The cases of Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287 [ 40 S.Ct. 527 , 64 L.Ed. 908 ], and Ohio Bell Telephone Co. v. Public Utilities Com., 301 U.S. 292 [ 57 S.Ct. 724 , 81 L.Ed. 1093 ], relied on by plaintiffs, are distinguishable. Each involved the regulation of rates of a single public utility, not, as here and in Bi-Metallic Inv. Co. v. State Board of Equalization, 239 U.S. 441 [ 36 S.Ct. 141 , 60 L.Ed. 372 ], a tax determination applicable to numerous persons. The Ben Avon case held that where a utility claims confiscation will result from a rate order, the utility is entitled to a fair opportunity to submit that issue to a judicial tribunal for determination upon its own independent judgment. (But see discussion of subsequent federal eases in 4 Davis, Administrative Law Treatise (1958), § 29.09, pp. 163 et seq.) Plaintiffs in the present cases obtained an independent judicial determination as to the validity of the tax rates after a fair opportunity to present evidence in support of their position. In the Ohio Bell Telephone ease the commission made a rate order, relying on statistics and trade journals which had not been received in evidence at the administrative hearing, and the utility was not advised of what had occurred until after the order was made. The judicial review which followed was limited to a consideration of the record before the commission, and the utility was never given an opportunity to rebut the evidence not in the record. In holding that the utility had been denied due process, the court recognized that a different question would have been presented if the commission’s order had been subject to attack in an independent action (301 TJ.S. at p. 303), and the case is consistent with the proposition that evidence outside the record may be used so long as its use is made known

to the parties and they are given an opportunity to rebut it (see 2 Davis, Administrative Law Treatise (1958), §15.12, pp. 415-416). In the present cases plaintiffs were informed of the material relied upon by the commissioner as discussed above, and thereafter they were given opportunities for reasonable verification of that material and for attacking the rates by introducing any relevant, nonprivileged evidence.

Plaintiffs assert that, in determining the amount of personal property taxes of nonfinancial corporations, the commissioner used figures not in accord with the provisions of section 4a. They point out that the commissioner accepted as conclusive the classification made by the assessing authorities as to whether property of nonfinancial corporations was realty or personalty. It was shown at the trial that trade fixtures and other real property of those corporations had been misclassified by some assessing authorities as personal property.

The amount of personal property taxes of nonfinancial corporations to be taken into consideration by the commissioner is described in section 4a as the amount “required to be paid” as personal property taxes. The commissioner has in effect construed the quoted language as referring to the amount which the assessing authorities have required to be paid rather than, as plaintiffs urge, the amount which the assessors should have required to be paid. The construction adopted by the commissioner is clearly reasonable. As we have seen, personal property taxes on nonfinancial corporations are taken into account for the purpose of achieving equality between those corporations and the banks, and the construction that results in considering the amounts assessors have required to be paid is in accord with that objective. Moreover, errors that may occur in assessments may be favorable to the banks as well as unfavorable. On the other hand, if plaintiffs’ construction were adopted and the determinations made by the assessors were not conclusive, the administration of the bank tax would be extremely burdensome and would involve considerable duplication of the work of the assessors. The commissioner would not only be. compelled to reclassify property but would also be subject to additional burdens such as reevaluation of the property and redetermination of exemptions. The Legislature could not have intended such a result. It should also be noted that the trial court found that the procedures used by the commissioner achieved a “rough approximation” of the rates which would have been imposed if no misclassification had occurred.

The inclusion of the personal property taxes paid by cooperatives in the computations of the commissioner resulted in higher bank tax rates than would otherwise have been applicable, and plaintiffs contend that those taxes should not have been included. They point out that under section 4a the personal property taxes paid by a corporation having a net loss may be included in the computations only to the extent those taxes exceed the amount of net loss, and they assert that, if the net income of cooperatives had been correctly calculated, every cooperative would have had a net loss in excess of its personal property taxes. It is plaintiffs’position that cooperatives, in determining their net income, may deduct all operating expenses and are also, with respect to business done with members and done with nonmembers on a nonprofit basis, entitled to a deduction of the gross income under subdivisions (Z) and (m) of section 8 of the act, which provide that cooperatives may deduct all income from such business.

The determination of net income of cooperatives is important primarily for the purpose of ascertaining the franchise tax which the cooperatives themselves must pay and only indirectly for the purpose of computing the bank tax rate. The method of calculation urged by plaintiffs would give cooperatives an unwarranted benefit closely akin to a double deduction because they would be entitled to deduct, in addition to gross income from membership and nonprofit business, all operating expenses, which would include those attributable to the production of that income. Thus cooperatives would always have a loss from their cooperative business in the amount that expenses were incurred in carrying on that business, and this loss would substantially, if not entirely, offset income from profit-making activities, which should be taxable. In the present cases the trial court found that under the method of calculation urged by plaintiffs all cooperatives would have net losses for the years in question.

The commissioner’s method of calculating the income of cooperatives, on the other hand, has the sensible result of treating them, so far as they engaged in profit-making business, like any other corporation subject to the franchise tax. He treated the deduction permitted by subdivisions (Z) and (m) of section 8 as the gross income from member and nonprofit business minus the expenses incurred in producing that income. This treatment led to the result that, as to member and nonprofit business, the cooperatives had no income or loss and that net income or loss depended upon the difference, if