| U.S. Circuit Court for the District of Southern New York | Jun 10, 1909
(after stating the facts as above). In view of former decisions in this circuit (Leather Manufacturers’ Bank v. Treat [C. C.] 116 F. 774" date_filed="1902-06-13" court="None" case_name="Leather Mfrs.' Nat. Bank v. Treat">116 Fed. 774; Id., 128 Fed. 262, 62 C. C. A. 644) there would be no difficulty in finding that these accumulated undivided profits are either “surplus” or “capital.” In the case cited the plaintiff was a bank engaged solely in a banking business, and presumably all the property that it had was employed in such business. But in the case at bar the plaintiff is not a bank or banker, and, although it does some of the things enumerated in the section as indicative of such business, its principal business seems to be distinctively that of a trust company.
It will be observed that the “capital and surplus,” which is subjected to.the tax, is that which is used or employed by the banker; i. e., in the banking business. The evidence shows that the entire amount of these undivided profits before, during, and at the end of the fiscal year were invested in municipal and railway bonds and in the stocks of corporations, and were not in any sense employed in the business of banking, although the ownership of this large amount of securities available to make good losses in any of the enterprises which the corporation was conducting naturally increased its credit generally.
Counsel may prepare and submit findings in accordance with this decision, whereupon they will be signed, and judgment entered for the plaintiff.