237 Mass. 269 | Mass. | 1921
This is a petition filed on September 24, 1918, by a foreign corporation to recover excises assessed and paid by it under the general tax act, St. 1909, c. 490, Part III, § 56.
It is settled by Lever Brothers Co. v. Commonwealth, 232 Mass. 22, decided since this proceeding was instituted, that the petition so far as it concerns recovery of excises paid in 1915, 1916 and' 1917, cannot be maintained. The petitioner has not argued to the contrary.
The questions presented relate to the excise of 1918. The pertinent facts respecting that are that the annual meeting of the petitioning corporation was held on January 30, 1918, and was finally adjourned on that day, and the excise here sought to be recovered was paid to the Treasurer and Receiver General on April 30, 1918. It is provided by § 54, Part III, of the tax act that "Every foreign corporation shall annually, within thirty days after the date fixed for its annual meeting, or within thirty days after the final adjournment of said meeting, but not more than three months after the date so fixed for said meeting, prepare and file in the office of the Secretary of the Commonwealth ... a certificate . . . showing the amount of its authorized capital stock, and its assets and liabilities. . . By § 55 it is provided that the certificate required by § 54 must first be “submitted to the commissioner of corporations, who shall examine said certificate and shall as Tax Commissioner assess upon the corporation an excise tax in accordance with the provisions of the following section. If he finds that the certificate is in compliance with the requirements of the preceding section, he shall indorse his approval thereon; but no certificate shall be filed until he has indorsed his approval thereon, and until the excise tax required by
Since the excise tax cannot be assessed until the certificate is presented to the Tax Commissioner, nor filed until the tax is paid, its'validity must be determined by the law as it stands on the date of the assessment. It is alleged in the petition that the annual meeting was held and adjourned finally on January 30, 1918, and that the tax was paid on April 30, 1918. There is no allegation that the certificate was approved and the excise assessed by the Tax Commissioner at a time before the tax was paid. Of course no intendment can be made in favor of the petitioner in that particular. Bowker v. Torrey, 211 Mass. 282, 286. Eldredge v. Mutual Life Ins. Co. of New York, 217 Mass. 444. Second Society of Universalists in the Town of Boston v. Royal Ins. Co. Ltd. 221 Mass. 518. Hayden v. Perfection Cooler Co. 227 Mass. 589, 592. So far as any inference is permissible it would be to the effect that the assessment is made when the excise is paid. Lawton Spinning Co. v. Commonwealth, 232 Mass. 28. The peti
It does not appear whether proceedings had been begun against the. petitioner -under §§ 58, 59, or whether the officers of the State merely accepted the certificate when offered for filing by the petitioner. But that is of no consequence in this connection. In either event the petitioner is bound by the law when the assessment was made on April 30, 1918.
If the excise tax law is valid when the excise is assessed and the excise is assessed according to the law at that time, it is a valid tax. Previous infirmities in the law, if removed before that time, are of no consequence in determining the validity of the excise.
The excise tax law on foreign corporations in force on April 30, 1918, was St. 1909, c. 490, Part III, § 56. That statute is not violative of any provision of the State or Federal Constitutions. It was so decided in Baltic Mining Co. v. Commonwealth, 207 Mass. 381, and S. S. White Dental Manuf. Co. v. Commonwealth, 212 Mass. 35, both affirmed in Baltic Mining Co. v. Massachusetts, 231 U. S. 68.
The validity of § 56 is not in any particular impaired by St. 1914, c. 724, so far as concerns the case at bar, because the latter statute was repealed by St. 1918, c. 76, which took effect on March 18,1918, several weeks before the assessment of the present excise. That was decided as an interpretation of .the meaning and a construction of the statutes of this Commonwealth by Lawton Spinning Co. v. Commonwealth, 232 Mass. 28, which is authoritative upon this point. Its reasoning need not be repeated.
This point appears to us to be quite outside the scope of the decisions in International Paper Co. v. Massachusetts, 246 U. S. 135, and Locomobile Co. of America v. Massachusetts, 246 U. S.
So far as the construction and interpretation of the statutes of this Commonwealth are within our jurisdiction, it was expressly decided in Lawton Spinning Co. v. Commonwealth, 232 Mass. 28, that § 56 and St. 1914, c. 724, were separable and that there was no such connection between the valid § 56 and the invalid St. 1914, c. 724, as to prevent the validity of § 56 standing alone, even if there had been no repeal of St. 1914, c. 724. That decision was based upon a fundamental principle of jurisprudence of this Commonwealth, and that same principle seems to us to be recognized and reiterated in International Textbook Co. v. Pigg, 217 U. S. 91, 113. See Liquid Carbonic Co. v. Commonwealth, 232 Mass. 19. The tax in the case at bar was assessed wholly under the provisions of § 56 and not in any particular under St. 1914, c. 724.
It remains to determine whether the petitioner was so engaged in local business in this Commonwealth as to be subject to the excise. Thé allegations in the bill to the effect that the petitioner was engaged in this Commonwealth exclusively in interstate or foreign commerce and other general averments of that nature were treated at the bar as allegations of law and not of fact. The case was argued and must be considered on the footing that only the specific facts set forth in the petition are agreed to be true.
If a foreign corporation is engaged exclusively in interstate commerce, it is not subject to the excise. Marconi Wireless Telegraph Co. of America v. Commonwealth, 218 Mass. 558, and cases there collected.
The pertinent agreed facts are that the petitioner, incorporated under the laws of the State of Maine, there had its principal office at which it held its stockholders’ meetings, and kept its records. The other agreed facts show, however, that this was the usual instance of a corporation having its domicil only in one State while all its substantial corporate activities were carried on in other States. From its organization in 1904 until February, 1917, the petitioner was the holder of about ninety-six per cent of the capital stock of the Old Dominion Copper Mining and Smelting Company, a New Jersey corporation, and of the United Globe Mines, a New York corporation, and it had and did no other business.
Manifestly the financial headquarters of the petitioner were at Boston. Its financial transactions must very largely, if not exclusively, be conducted and its financial records made and kept at the Boston office. These are inseparable from the duties of treasurer when the general disbursements and the payment of dividends are made by him from his Boston office. These are corporate functions which are local in their nature. They are not interstate or foreign commerce. They are activities of the corporation which have no direct relation to interstate or foreign commerce and can be conducted at the particular place selected by the corporation. They are quite independent of the character or extent of its interstate or foreign commerce and of the States
. Petition dismissed with costs.