CURRY, STATE TAX COMMISSIONER OF ALABAMA, ET AL. v. MCCANLESS, COMMISSIONER OF FINANCE AND TAXATION OF TENNESSEE
No. 339
Supreme Court of the United States
May 29, 1939
Reargued April 28, 1939
307 U.S. 357
Argued January 9, 1939
It results that the decrees in Nos. 166 and 167 must be affirmed, and that in No. 603 must be reversed.
Nos. 166 and 167, affirmed.
No. 603, reversed.
MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.
Mr. Marion Rushton on the reargument, and with Mr. Chas. C. Trabue, Jr. on the original argument, for appellants. Messrs. A. A. Carmichael, Attorney General of Alabama, Ray Rushton, and Walter Knabe were with them on the brief.
Mr. Edwin F. Hunt on the reargument and on the original argument for appellee.
The questions for decision are whether the States of Alabama and Tennessee may each constitutionally impose death taxes upon the transfer of an interest in intangibles held in trust by an Alabama trustee but passing under the will of a beneficiary decedent domiciled in Tennessee; and which of the two states may tax in the evеnt that it is determined that only one state may constitutionally impose the tax.
Decedent, a domiciled resident of Tennessee, by trust indenture transferred certain stocks and bonds upon specified trusts to Title Guarantee Loan & Trust Company, an Alabama corporation doing business in that state. So far as now material, the indenture provided that the net income of the trust property should be paid over to decedent during her lifetime. She reserved the power to remove the trustee and substitute another, which was never done; the power to direct the sale of the trust property and the investment of the proceeds; and the power to dispose of the trust estate by her last will and testament, in which event it was to be “handled and disposed of as directed” in her will. The indenture provided further that in defаult of disposition by will the property was to be held in trust for the benefit of her husband, son, and daughter. Until decedent‘s death the trust was administered by the trust company in Alabama and the
By her last will and testament decedent bequeathed the trust property to the trust company in trust for the benefit of her husband, son, and daughter, in different amounts and by different estates from those provided for by the trust indenture, with remainder interests over to the children of the son and the daughter respectively, and to his wife and her husband. By her will testatrix appointed a Tennessee trust company executor “as to all property which I may own in the State of Tennessee at the time of my death,” and an Alabama trust company executor “as to all property which I may own in the State of Alabama and also as to all property which I may have the right to dispose of by last will and testament in said state.” The will has been probated in Tennessee and in Alabama, and letters testamentary have issued to the two trust companies named as executors in the will.
The present suit was brought by the two executors in a chancery court of Tennessee against appellants, comprising the State Tax Commission of Alabama, and appellee, Commissioner of Finance and Taxation of the State of Tennessee, who are charged with the duty of collecting inheritance or succession taxes in their respective states. The bill of complaint prayed a declaratory judgment pursuant to the Tennessee Declaratory Judgments Act,
Alabama has assessed a state inheritance tax on the trust property pursuant to
Both the court of chancery of Tennessee and the Supreme Court of Tennessee, conceiving that the Fourteenth Amendment requires the transmission at death of intangibles to be taxed at their “situs” and there only, considered that the primary question for determination was the situs or location to be attributed to the intangibles of the trust estate at the time of decedent‘s death. After considering all of the relevant factors, the one court concluded that the situs of the intangibles was in Alabama, the other that it was in Tennessee. Despite the impossibility in the circumstances of this case of attributing a single location to that which has no physical
The doctrine, of recent origin, that the Fourteenth Amendment precludes the taxation of any interest in the same intangible in more than one state has received support to the limited extent that it was applied in Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204; Baldwin v. Missouri, 281 U. S. 586; First National Bank v. Maine, 284 U. S. 312. Still more recently this Court has declined to give it completely logical application.1 It has never been pressed to the extreme now urged upon us, and we think that neither reason nor authority requires its acceptance in the circumstances of the present case.
That rights in tangibles—land and chattels—are to be regarded in many respects as localized at the place where the tangible itself is located for purposes of the jurisdiction of a court to make disposition of putative rights in them, for purposes of conflict of laws, and for purposes of taxation, is a doctrine generally accepted both in the common law and other legal systems before the adoption of the Fourteenth Amendment and since.2
Originating, it has been thought, in the tendency of the mind to identify rights with their physical subjects, see Salmond, Jurisprudence (2nd ed.) 398, its survival and the consequent cleavage between the rules of law applicable to tangibles and those relating to intangibles are attributable to the exclusive dominion exerted over the tangibles themselves by the government within whose territorial limits thеy are found. Green v. Van Buskirk, 7 Wall. 139, 150; Pennoyer v. Neff, 95 U. S. 714; Arndt v. Griggs, 134 U. S. 316, 320-321. See McDonald v. Mabee, 243 U. S. 90, 91; cf. Harris v. Balk, 198 U. S. 215, 222; Frick v. Pennsylvania, supra, 497. The power of government and its agencies to possess and to exclude others from possessing tangibles, and thus to exclude them from enjoying rights in tangibles located within its territory, affords adequate basis for an exclusive taxing jurisdiction. When we speak of the jurisdiction to tax land or chattels as being exclusively in the state where they are physically located, we mean no more than that the benefit and protection of laws enabling the owner to enjoy the fruits of his ownership and the power to reach effectively the interests protected, for the purpose of subjecting them to payment of a tax, are so narrowly restricted to the state in whose territory the physical property is located as to set practical limits to taxation by others. Other states have been said to be without jurisdiction and so without constitutional power to tax tangibles if, because of their location elsewhere, those states can afford no substantial protection to the rights taxed and cannot effectively lay hold of any interest in the
Very different considerations, both theoretical and practical, apply to the taxation of intangibles, that is, rights which are not related to physical things. Such
The power to tax “is an incident of sovereignty, and is co-extensive with that to which it is an incident. All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation.” McCulloch v. Maryland, 4 Wheat. 316, 429. But this does not mean that the sovereign power of the state does not extend over intangibles of a domiciled resident because they have no physical location within its territory, or that its power to tax is lost because we may choose to say they are located elsewhere. A jurisdiction which does not depend on physical presence within the state is not lost by declaring that it is absent. From the beginning of our constitutional system control over the person at the place of his domicile and his duty there, common to all citizens, to contribute to the support of government have been deemed to afford an adequate constitutional basis for imposing on him a tax on the use and enjoyment of rights in intangibles measured by their value. Until this moment that jurisdiction has not been thought to depend on any factor other than the domicile
In cases where the owner of intangibles confines his activity to the place of his domicile it has been found convenient to substitute a rule for a reason, cf. New York ex rel. Cohn v. Graves, 300 U. S. 308, 313; First Bank Stock Corp. v. Minnesota, 301 U. S. 234, 241, by saying that his intangibles are taxed at their situs and not elsewhere, or, perhaps less artificially, by invoking the maxim mobilia sequuntur personam, Blodgett v. Silberman, supra; Baldwin v. Missouri, supra, which means only that it is the identity or association of intangibles with the person of their owner at his domicile which gives jurisdiction to tax. But when the taxpayer extends his activities with respect to his intangibles, so as to avail himself of the protection and benefit of the laws of another state, in such a way as to bring his person or property within the reach of the tax gatherer there, the reason for a single place of taxation no longer obtains, and the rule is not even a workable substitute for the reasons which may exist in any particular case to support the constitutional power of each state concerned to tax. Whether we regard the right of a state to tax as founded on power over the object taxed, as declared by Chief Justice Marshall in McCulloch v. Maryland, supra, through dominion over tangibles or over persons whose relationships are the source of intangible rights; or on the benefit and protection conferred by the taxing sovereignty, or both, it is undeniable that the state of domicile is not deprived, by the taxpayer‘s activities elsewhere, of its constitutional jurisdiction to tax, and consequently that there are many circumstances in which more than one state may have jurisdictiоn to impose a tax and measure it by some or all of the taxpayer‘s intangibles. Shares of corporate stock may be taxed at the domicile of the shareholder and also at that of the corporation which the taxing state has created and controls; and income may be taxed both by the state where it is earned and by the state of the recipient‘s domicile.4 Protection, benefit, and power over the subject matter are not confined to either state. The taxpayer who is domiciled in one state but carries on business in another is subject to a tax there measured by the value of the intangibles used in his business. New Orleans v. Stempel, 175 U. S. 309; Bristol v. Washington County, 177 U. S. 133; State Board of Assessors v. Comptoir National, 191 U. S. 388; Metropolitan Life Ins. Co. v. New Orleans, 205 U. S. 395; Liverpool & L. & G. Ins. Co. v. Board, 221 U. S. 346; Wheeling Steel Corp. v. Fox, 298 U. S. 193; cf. Blodgett v. Silberman, supra; Baldwin v. Missouri, supra. But taxation of a corporation by a state where it does business, measured by the value of the intangibles used in its business there, does not preclude the state of incorporation from imposing a tax measured by all its intangibles. Cream of Wheat Co. v. Grand Forks, supra, 329;5 see Fidelity & Columbia Trust Co. v. Louisville; 245 U. S. 54.
The practical obstacles and unwarranted curtailments of state power which may be involved in attempting to
Even if we could rightly regard these various and distinct legal interests, springing from distinct relationships, as a composite unitary interest and ascribe to it a single location in space, it is difficult to see how it could be sаid to be more in one state than in the other and upon what articulate principle the Fourteenth Amendment could be thought to have withdrawn from either state the taxing jurisdiction which it undoubtedly possessed before the adoption of the Amendment by conferring on one state, at the expense of the other, exclusive jurisdiction to tax. See Paddell v. City of New York, 211 U. S. 446, 448. If the “due process” of the Fifth Amendment does not require us to fix a single exclusive place of taxation of intangibles for the benefit of their foreign owner, who is
If taxation is but a means of distributing the cost of government among those who are subject to its control and who enjoy the protection of its laws, see New York ex rel. Cohn v. Graves, supra, 313; First Bank Stock Corp. v. Minnesota, supra, 241, legal ownership of the intangibles in Alabama by the Alabama trustee would seem to afford adequate basis for imposing on it a tax measured by their value. We can find no more ground for saying that the Fourteenth Amendment relieves it, or the property which it holds and administers in Alabama, from bearing that burden, than for saying that they are constitutionally immune from paying any other expense which normally attaches to the administration of a trust in that state. This Court has never denied the constitutional power of the trustee‘s domicile to subject them to property taxation. Safe Deposit & Trust Co. v. Virginia, 280 U. S. 83; see cases collected in 30 Columbia Law Rev. 530; 2 Cooley, Taxation (8th ed.), § 602. And since Alabama may lawfully tax the property in the trustee‘s hands, we perceive no ground for saying that the Fourteenth Amendment forbids the state to tax the transfer of it or an interest in it to another merely because the transfer was effected by decedent‘s testamentary act in another state.
No more plausible ground is assigned for depriving Tennessee of the power to tax in the circumstances of this case. The decedent‘s power to dispose of the intangibles was a potential source of wealth which was property in her hands from which she was under the highest obliga-
For purposes of taxation, a general power of appointment, of which the testatrix here was both donor and donee, has hitherto been regarded by this Court as equivalent to ownership of the property subject to the power. Chanler v. Kelsey, 205 U. S. 466; Bullen v. Wisconsin, supra, 630; Chase National Bank v. United States, 278 U. S. 327, 338; see Gray, Rule Against Perpetuities (3d ed. 1916), § 524.6 Whether the appointee derives title from the donor, under the common law theory, or from the donee by virtue of the exercise of the power, is here immaterial. In either event the trustee‘s title under the will was derived from decedent, domiciled in Tennessee. Cf. Wachovia Trust Co. v. Doughton, 272 U. S. 567. There is no conflict here between the laws оf the two states affecting the transmission of the trust property. The title of the trustee under the original Alabama trust came to an end upon the exercise of the testatrix‘s power of appointment; and although the trustee after her death still had title to the securities, it was in by a new title as legatee under her will, and a new beneficial interest was created, both derived through the exercise of her power of disposition. The resulting situation was no different from what it would have been if she had bequeathed the
It has hitherto been the accepted law of this Court that the state of domicile may constitutionally tax the exercise or non-exercise at death of a general power of appointment, by one who is both donor and donee of the power, relating to securities held in trust in another state. Bullen v. Wisconsin, supra. If it be thought that it is identity of the intangibles with the person of the owner at the place of his domicile which gives power over them and hence “jurisdiction to tax,” and this is the reason underlying the maxim mobilia sequuntur personam, it is certain here that the intangibles for some purposes are identified with the trustee, their legal owner, at the placе of its domicile and that in another and different relationship and for a different purpose—the exercise of the power of disposition at death, which is the equivalent of ownership—they are identified with the place of domicile of the testatrix, Tennessee. In effecting her purposes, the testatrix brought some of the legal interests which she created within the control of one state by selecting a trustee there and others within the control of the other state by making her domicile there. She necessarily invoked the aid of the law of both states, and her legatees, before they can secure and enjoy the benefits of succession, must invoke the law of both.
We can find no nothing in the history of the Fourteenth Amendment and no support in reason, principle, or authority for saying that it prohibits either state, in the
If we enjoyed the freedom of the framers it is possible that we might, in the light of experience, devise a more equitable system of taxation than that which they gave us. But we are convinced that that end cannot be attained by the device of asсribing to intangibles in every case a locus for taxation in a single state despite the
So far as the decree of the Supreme Court of Tennessee denies the power of Alabama to tax, it is
Reversed.
Mr. JUSTICE REED concurs in this opinion except as to the statement that “taxation of a corporation by a state where it does business, measured by the value of the intangibles used in its business there, does not preclude the state of incorporation from imposing a tax measured by all its intangibles.” Upon this point he reserves his conclusion.
Mr. JUSTICE BUTLER, dissenting.
The sole question is whether, on the facts about to be stated, the Tennessee inheritance tax law, consistently with the due process clause of the Fourteenth Amendment, may be extended to intangible personal property evidenced by certificates of stock and bonds held in Alabama.
The suit was brought in a chancery court of Tennessee under the declaratory judgments act of that State.1 Com-
At all times involved in this case, Mrs. Scales was a resident of and domiciled in Tennessee. Her brother, formerly living in Alabama, died in 1905 leaving a will that bequeathed to the Birmingham trust company stocks and bonds issued by Alabama corporations to be held in trust for the use and benefit of his widow and at her death to be delivered to Mrs. Scales. The widow died in 1917. Immediately, December 29, 1917, and without taking any of them from the possession of the trust company, Mrs. Scales executed jointly with it an indenture covering the stocks and bonds of which she had become owner under her brother‘s will.
By paragraph 1, she transferred 50 bonds to the trust company as trustee for the use and benefit of her son and directed that it hold and manage the property and pay net income to him during his life, and that, subject to his power of disposition by will, all property belonging to the trust at the time of his death should go to his children.
By paragraph 2, she transferred to the same company 50 other bonds to be held in trust for the benefit of her daughter subject to trusts, conditions, and power of testamentary appointment by her daughter like those specified in the provisions creating the trust for her son.
By paragraph 3, she transferred to the same trustee the balance of the property by it to be held in trust and managed for specified uses and purposes and upon terms and conditions in substance as follows: (a) She directed the trustee to pay the income to her while she lived. (b) She reserved the right by will to dispose of all thе trust property. (c) She directed that if she made no disposi-
January 1, 1926, Mrs. Scales exerted the power by will to dispose of the trust property. Item two recites that she had reserved the right to dispose by will of property conveyed to the trustee under paragraph 3 of the trust agreement and provides: “Now, therefore, desiring to exercise the right to dispose of the said trust property, I do hereby give, devise, and bequeath all of the property in custody of said Title Guarantee Loan & Trust Company . . . at the time of my deаth to the said company, as trustee, the same to be held by it in trust upon the uses and trusts, terms, conditions, and limitations hereinafter set forth in this item of my will.”
Section one of that item directs that from the trust estate there shall be set aside property of the value of $100,000 to be held in trust as there specified for her
An amendment to the answer of the members of the Alabama Tax Commission alleges, and by stipulation the other parties admit, that from the trust indenture it fully appears that the title, possession and control of the securities passed completely to the Birmingham trust company and that such was the status of the securities at the time of the death of Mrs. Scales. That amendment also alleges, and the stipulation admits, that she never exercised the right reserved to her to remove the trustee and that the trust property could not have been removed from Alabama except upon an order of a circuit court and in compliance with the statutes of that State.4
The chancery court found that at the time of the death of Mrs. Scales the securities in question “had a legal situs analogous to the situs of tangible personal property in the State of Alabama.” It decreed that Alabama may legally impose upon them a death transfer or succession tax and that in so far as the inheritаnce tax law of Tennessee attempts to impose the tax claimed by that State it violates the due process clause of the Fourteenth Amendment.
The state supreme court reversed the chancery court. It held that the securities were not so used in Alabama as to give them a situs there; that when Mrs. Scales died the situation was the same as though there never had been a trust; and that the property passed under the will as her absolute property. It entered a decree declaring the property taxable in Tennessee and not taxable in Alabama.
The parties agree that, upon execution of the indenture, title, possession, and control passed completely to the trustee and so continued until the death of Mrs. Scales. There being no provision authorizing revocation, the grant was irrevocable. Perry on Trusts and Trustees (7th ed.) § 104. Bogert, Trusts and Trustees, § 993. Keyes v. Carleton, 141 Mass. 45, 49; 6 N. E. 524. Ewing v. Jones, 130 Ind. 247, 254-255; 29 N. E. 1057. Bath Savings Institution v. Hathorn, 88 Me. 122, 128-129; 33 A. 836.
The reserved authority to direct investment contemplates action as trustee and not control as owner. Reinecke v. Northern Trust Co., 278 U. S. 339, 346-347. The authority to remove the trustee and to appoint a successor detracts nothing from thе plenary grant of title. See Bowditch v. Banuelos, 1 Gray 220, 230. When read as it must be in connection with the provisions of the Alabama statute above referred to, that provision of the indenture does not reserve power to remove the trust securities from the State of Alabama.
As the death of Mrs. Scales and taking effect of her will were coincident, the legal title remained in the trustee. The purposes Mrs. Scales intended to effect by the trusts defined by her will are like those she intended to serve by the trusts created by the indenture which, in absence of will, were to continue after death. Stripped of mere legalism, and taken according to substance, the will operated to amend and continue the trusts created by the indenture. Questions of power to tax are governed by the substance of things rather than by technical rules,
It fоllows that, save her right to income, Mrs. Scales, after her relinquishment, January 11, 1929, and at the time of her death, had no estate or interest in the securities held by the trustee. There is no basis for application of the fiction mobilia sequuntur personam. Wachovia Trust Co. v. Doughton, 272 U. S. 567, 575. Brooke v. Norfolk, 277 U. S. 27, 29. Safe Deposit & T. Co. v. Virginia, 280 U. S. 83, 92, 94. McMurtry v. State, 111 Conn. 594. Estate of Bowditch, 189 Cal. 377. Matter of Canda, 197 App. Div. 597; 189 N. Y. S. 917. Cf. Bullen v. Wisconsin, 240 U. S. 625. Tennessee may not impose the inheritance tax claimed in this suit by its Commissioner of Finance and Taxation.
Moreover, if contrary to the indenture as above construed, it should be held that at the time of her death Mrs. Scales in addition to having power of appointment by will owned an interest in the trust property, Tennessee would nevertheless be without power to impose a tax on the transfer of that interest because the intangibles in question had no situs in that State.
Intangibles, like tangibles, may be so held and used outside the State of the domicil of the owner as to become taxable in the Stаte where kept. See e. g. New Orleans v. Stempel, 175 U. S. 309. Bristol v. Washington County, 177 U. S. 133, 143 et seq. State Board of Assessors v. Comptoir National, 191 U. S. 388. Scottish Union & Nat. Ins. Co. v. Bowland, 196 U. S. 611, 619-620. Metropolitan Life Ins. Co. v. New Orleans, 205 U. S. 395, 402. Liverpool & L. & G. Ins. Co. v. Orleans Assessors, 221 U. S. 346, 353. The general rule of mobilia sequuntur personam must yield to the established fact of legal ownership, actual presence and control in a State other than that of the domicil of the owner. The phrase “business situs” as used to support jurisdiction of a State
The stock certificates, bonds or other documents evidencing the intangibles constituting the trust propеrty were never held in Tennessee. Neither their issue or validity nor the enforcement or transfer, inter vivos or from the dead to the living, of any right attested or supported by them was at all dependent on the laws of that State.5 From the beginning, the trust estate has been under the protection of, and necessarily the trusts have been and are being executed under, the laws of Alabama unaffected by those of any other State. See Hutchison v. Ross, 262 N. Y. 381, 394; 187 N. E. 65; Sewall v. Wilmer, 132 Mass. 131, 137.
At least since 1917, Mrs. Scales had no power to remove the trust or any of the trust property from Alabama. Exertion of any right or power reserved to her by the indenture was dependent on the laws of Alabama and not upon or subject to those of Tennessee, where she happened to have her domicil. Wachovia Trust Co. v. Doughton, ubi supra. Subject to the laws of Alabama, all transactions in which the trust properties were capable of being used were identified with that State. The securities, held there not only for safekeeping but as well for collection of income and principal, and subject to sale and reinvestment of proceeds, could not be more com-
The judgment of the Supreme Court of Tennessee should be reversed and the case remanded to that court for further proceedings in accordance with this opinion.
MR. CHIEF JUSTICE HUGHES, MR. JUSTICE MCREYNOLDS and MR. JUSTICE ROBERTS join in this opinion.