215 S.W.2d 102 | Ky. Ct. App. | 1948
Affirming.
Appeal is from a judgment sustaining a final order of the Tax Commission holding a deficiency in appellant's income tax for the year 1945. The court held that the transcript of the proceedings before the Commission did not show appellant entitled to the relief sought and dismissed the appeal. Relief sought was a reversal of the order of the Commission. The question presented is purely one of construction of taxing statutes and their application to undisputed facts.
Appellant, a Tennessee corporation with its chief place of business in Houston, Texas, owns and operates a pipe line originating in Texas, passing through intervening states into Kentucky and ending in West Virginia. It purchases gas in Texas and pipes it to customers in Kentucky and West Virginia. In 1945 its customers were five utility companies. It does not sell directly to consumers or transport for other producers, but delivers gas in Kentucky to four customers for distribution. Under one contract to the United Fuel Gas Company; under another to the Louisville Gas and Electric Company, delivered at a point in Marion County, thence piped into Louisville where it is distributed. The third and fourth sales contracts, with the Taylor-Green Gas Company, and the Kentucky Natural Gas Corporation are similar to the second one, except as to delivery points. These three classes of deliveries constitute the company's sales for the calendar year in question. The total deliveries in 1945 in and out of Kentucky, in dollar volume, amount to $14,303,076.63, and of this sum Kentucky deliveries amounted to 6.01 per centum of the whole.
Appellant asserted that its sole activities in Kentucky are the maintenance of its pipelines and necessary compressors, and the delivery of gas at stations under the contracts; that it maintains no office in this state other than the statutory office required for process service. KRS 271.385 (2). As bearing on the question presented, appellant filed affidavits of its officers setting out the following facts:
Its principal place of business is in Houston, Texas; that its contract with the U. F. G. Company was negotiated *574 in Chicago and New York City, executed by appellant in Chicago, and by U. F. G. Company in Charleston, West Virginia. The one with L. G. E. Company was negotiated, and by appellant executed in Houston and by its customer in Louisville. The Taylor-Green contract was negotiated in Houston and Charleston, executed by appellant in Houston and by its customer in Campbellsville, Kentucky. The other contract was negotiated in Houston and Washington, D.C., executed by appellant in Houston, and by the customer in Owensboro, Kentucky.
With appellant's return for 1945 it enclosed a check for $474.75, this sum based on its application of the tax statutes. Upon audit by the Division it conceived the tax to be $1,311.34, its adjusted statement showing a balance due of $836.51. This finding was upheld by the Commission and the court, it being contended before those bodies, as here, that under Sec.
In making its return appellant fixed its Kentucky sales or receipts at zero; the authorities increased the percentage of appellant's income allocable to Kentucky by lifting Kentucky sales and receipts to $3,171,416.40, thus increasing the "Business ratio percentage," from zero to 22.17 per cent, and the apportionment factor between Kentucky and other states from 11.58 to 22.67 per cent, resulting in the tax increase.
Statutes: Ch. 141, KRS Sec.
Following is the section relied upon by appellant,
Appellant conceding the obvious that "it be doing business in Kentucky and has property in the State," contends that under some of our decisions "the income here in question is from a source outside Kentucky." At the outset it appears to us that such application of the section of the statute relied on would indeed result in an anomalous situation. The board would be compelled to determine whether or not the income from business done in Kentucky would have to be assigned to New York, Chicago, Washington, D.C., or other states where officers sat and negotiated, or where the final agreement was in part executed.
Appellant to some extent relies upon the general rule that taxing statutes must be strictly interpreted and, in case of doubt, in favor of the taxpayer. Barnes v. Indian Refining Co.,
There is another general rule to the effect that an exempting statute must be construed most strongly against the one claiming immunity, the burden being on the claimant to show clearly that he is within the terms. Gray v. Methodist Episcopal Church, South,
Appellant cites as authority for the proposition that where the source of income "is a contract chiefly negotiated and executed outside Kentucky, such income is not allocable to Kentucky for the purpose of computing taxpayers net income," Commonwealth v. Radio Corporation of America,
*577
The Fourth Avenue Amusement Company case is distinguishable. The company, a Kentucky corporation was operating picture shows in Kentucky and Indiana, four in Kentucky and six in Indiana. Through a subsidiary Indiana Corporation three were operated in an Indiana city, and Kentucky was claiming that the three theaters leased to the Indiana corporation were operated by appellant, which owned none of the leases, but owned the capital stock of the leasing corporation; that since the certificates of stock were located here, the dividends were received from sources in Kentucky, hence allocable and taxable here. We held to the contrary applying to the facts the provisions of KRS
The Atlantic Coast Line case is so readily distinguishable that it is unnecessary to comment, further than to say that the reasoning therein if conversely applied to the facts here would somewhat upset the theory or ground on which appellant contends non-liability.
As we enter the final stage we cannot escape the idea that enjoyment of the right to carry on business in Kentucky, and the right to invoke the protection of its laws are inseparable from the responsibility for sharing the burden of taxation or the cost of government. Reynolds Metal Co. v. Martin,
The income sought to be taxed is upon the "entire net income of the corporation derived from business done" in this state; the business done is the sale of tangible *578
personal property, natural gas. Crystal Ice Cold Storage Co. v. Marion Gas Co.,
We are not sure that we are called upon to undertake to say what was the intended meaning of Sec.
Appellant's construction would interpolate, and omit some of the words used; it would have the section read "receipts from sales shall be assigned to the place where the contract to deliver and sell is negotiated." Under this any foreign corporation carrying on business in Kentucky could have its officers meet its prospective customers in other states and negotiate and avoid the payment of tax on net income derived from business done in Kentucky.
We think there should be more emphasis on the words "transactions giving rise to the receipts," than on "negotiations." The transactions giving rise to the receipts were chiefly executed in this state. The signing of the contract by the customer, the delivery of the gas at the point of delivery; the transfer of title, were transactions chiefly handled in Kentucky with respect to execution. So it is not the contract negotiation which controls, but the total of the transactions which give rise to the receipts. Here the place of sale, the source of receipts, the business done was and is Kentucky. That these are factors in making allocation or apportionment in reaching the percentage of sales attributable to business within this state is made clear by Sec.
A careful consideration of the record before us leads to the conclusion that the chancellor correctly dismissed the petition for appeal and the judgment is affirmed.
