UNITED STATES v. DONRUSS CO.
No. 17
Supreme Court of the United States
January 13, 1969
393 U.S. 297
Argued October 22-23, 1968.
Richard L. Braunstein argued the cause for respondent. With him on the brief was Bernard J. Long.
Richard E. Nolan and John P. Carroll, Jr., filed a brief for the Shaw-Walker Co., as amicus curiae, urging affirmance.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
This case involves the application of
Respondent is a corporation engaged in the manufacture and sale of bubble gum and candy and in the operation of a farm. Since 1954, all of respondent‘s out-
Wiener gave several reasons for respondent‘s accumulation policy; among them were capital and inventory requirements, increasing costs, and the risks inherent in the particular business and in the general economy. Wiener also expressed a general desire to expand and a more specific desire to invest in respondent‘s major distributor, the Tom Huston Peanut Company. There were no definite plans during the tax years in question, but in 1964 respondent purchased 10,000 shares in Tom Huston at a cost of $380,000.
The Commissioner of Internal Revenue assessed accumulated earnings taxes against respondent for the years 1960 and 1961. Respondent paid the tax and brought this refund suit. At the conclusion of the trial, the Government specifically requested that the jury be instructed that:
“[I]t is not necessary that avoidance of shareholder‘s tax be the sole purpose for the unreasonable accumulation of earnings; it is sufficient if it is one of the purposes for the company‘s accumulation policy.”
The instruction was refused and the court instructed the jury in the terms of the statute that tax avoidance had to be “the purpose” of the accumulations. The jury, in response to interrogatories, found that respondent had accumulated earnings beyond the reasonable needs of its business, but that it had not retained its earnings
The Court of Appeals reversed and remanded for a new trial, holding that “the jury might well have been led to believe that tax avoidance must be the sole purpose behind an accumulation in order to impose the accumulated earnings tax.” Donruss Co. v. United States, 384 F. 2d 292, 298 (C. A. 6th Cir. 1967). The Court of Appeals rejected the Government‘s proposed instruction and held that the tax applied only if tax avoidance was the “dominant, controlling, or impelling motive” for the accumulation. Ibid. We granted the Government‘s petition for certiorari to resolve a conflict among the circuits1 over the degree of “purpose” necessary for the application of the accumulated earnings tax, and because of the importance of that question in the administration of the tax. 390 U. S. 1023 (1968).
The accumulated earnings tax is established by
“The accumulated earnings tax imposed by section 531 shall apply to every corporation ... formed or availed of for the purpose of avoiding the income tax with respect to its shareholders or the shareholders of any other corporation, by permitting earnings and profits to accumulate instead of being divided or distributed.”3
Section 533 (a) provides that:
“For purposes of section 532, the fact that the earnings and profits of a corporation are permitted to accumulate beyond the reasonable needs of the business shall be determinative of the purpose to avoid the income tax with respect to shareholders, unless the corporation by the preponderance of the evidence shall prove to the contrary.”
In cases before the Tax Court, § 534 allows the taxpayer in certain instances to shift to the Commissioner the burden of proving accumulation beyond the reasonable needs of the business. Section 535 defines “accu-
The dispute before us is a narrow one. The Government contends that in order to rebut the presumption contained in § 533 (a), the taxpayer must establish by the preponderance of the evidence that tax avoidance with respect to shareholders was not “one of the purposes” for the accumulation of earnings beyond the reasonable needs of the business. Respondent argues that it may rebut that presumption by demonstrating that tax avoidance was not the “dominant, controlling, or impelling” reason for the accumulation. Neither party questions the trial court‘s instructions on the issue of whether the accumulation was beyond the reasonable needs of the business, and respondent does not challenge the jury‘s finding that its accumulation was indeed unreasonable. We intimate no opinion about the standards governing reasonableness of corporate accumulations.
We conclude from an examination of the language, the purpose, and the legislative history of the statute that the Government‘s construction is the correct one. Accordingly, we reverse the judgment of the court below and remand the case for a new trial on the issue of whether avoidance of shareholder tax was one of the purposes of respondent‘s accumulations.
II.
Both parties argue that the language of the statute supports their conclusion. Respondent argues that Congress could have used the article “a” in §§ 532 and 533 if it had intended to adopt the Government‘s test. Instead, argues respondent, Congress used the article “the”
We find both parties’ arguments inconclusive. The phrase “availed of for the purpose” is inherently vague, and there is no indication in the legislative history that Congress intended to attach any particular significance to the use of the article “the.” Nor do we find the change in the evidentiary section from “a” to “the” at all helpful. That change came as part of a significant revision in the operation of the section, and there is no indication that it was other than a mere change in
III.
The accumulated earnings tax is one congressional attempt to deter use of a corporate entity to avoid personal income taxes. The purpose of the tax “is to compel the company to distribute any profits not needed for the conduct of its business so that, when so distributed, individual stockholders will become liable” for taxes on the dividends received, Helvering v. Chicago Stock Yards Co., 318 U. S. 693, 699 (1943). The tax originated in the Tariff Act of 1913, 38 Stat. 114, the first personal income tax statute following ratification of the Sixteenth Amendment. That Act imposed a tax on the shareholders of any corporation “formed or fraudulently
In its first years of operation, difficulties in proving a fraudulent purpose made the tax largely ineffective. To meet this problem, Congress deleted the word “fraudulently.” Revenue Act of 1918, § 220, 40 Stat. 1072; see S. Rep. No. 617, 65th Cong., 3d Sess., 5 (1918).7
During the next few years, numerous complaints were made about the ineffectiveness of the accumulated earnings tax. Various attempts were made to strengthen the tax during the 1920‘s and 1930‘s, but the statute remained essentially the same until 1934. See Joint Committee on the Economic Report, The Taxation of Corporate Surplus Accumulations, 82d Cong., 2d Sess, 200-205 (Comm. Print 1952). In 1934, Congress dealt with one of the more flagrant examples of that ineffectiveness, the personal holding company. Personal holding companies were exempted from the general accumulated earnings tax and were subjected to a tax on undistributed income, regardless of the purpose of that accumulation. Revenue Act of 1934, §§ 102, 351, 48 Stat. 702, 751. The reason for the change was that, “[b]y making partial distribution of profits and by showing some need for the accumulation of the remain-
Again in 1936, Congress attempted to solve the continuing problem of undistributed corporate earnings. “The difficulty of proving such [tax avoidance] purpose ... has rendered ... [the accumulated earnings tax] more or less ineffective.” H. R. Rep. No. 2475, 74th Cong., 2d Sess., 5 (1936). However, Congress did not change the requirement that “purpose” must be proved. Rather, it attempted the alternative method of imposing an undistributed profits surtax on most corporations. Revenue Act of 1936, § 14, 49 Stat. 1655. The tax on personal holding companies and the general accumulated earnings tax were retained.8
The problem continued to be acute and several proposals were made by and to Congress in 1938. The House Ways and Means Committee proposed a surtax on all closely held operating companies. Only minor changes were proposed by the Committee in the accumulated earnings tax. See H. R. Rep. No. 1860, 75th Cong., 3d Sess. (1938). The House rejected all but the changes in the accumulated earnings tax. The Senate approached the problem of retained corporate earnings in a different way. Labeling the House Committee‘s recommendation a “drastic” remedy, the Senate Finance Committee recommended “dealing with this problem where it should be dealt with—namely, in section 102, relating to corporations improperly accumulating surplus. The proposal is to strengthen this section by requiring the taxpayer by a
Only insignificant changes were made in the accumulated earnings tax from 1938 to 1954. Discussion of the problem continued, however, and numerous proposals were made to alter the tax. See, e. g., Joint Committee on the Economic Report, The Taxation of Corporate Surplus Accumulations, 82d Cong., 2d Sess. (Comm. Print 1952). Congress took cognizance of these complaints and incorporated many of them in the Internal Revenue Code of 1954, but no change was made in the required degree of tax avoidance purpose.9 Rather, the changes, which were generally favorable to the taxpayer,10 demonstrated congressional disaffection with the effect of the tax and its emphasis on intent. Congress’ reaction to the complaints was to emphasize the reasonable needs of the business as a proper purpose for corporate accumulations11 and to make it easier for the
As this brief summary indicates, the legislative history of the accumulated earnings tax demonstrates a continuing concern with the use of the corporate form to avoid income tax on a corporation‘s shareholders. Numerous methods were employed to prevent this practice, all of which proved unsatisfactory in one way or another. Two conclusions can be drawn from Congress’ efforts. First, Congress recognized the tremendous difficulty of ascertaining the purpose of corporate accumulations. Second, it saw that accumulation was often necessary for legitimate and reasonable business purposes. It appears clear to us that the congressional response to these facts has been to emphasize unreasonable accumulation as the most significant factor in the incidence of the tax. The reasonableness of an accumulation, while subject to honest difference of opinion, is a much more objective inquiry, and is susceptible of more effective scrutiny, than are the vagaries of corporate motive.
Respondent would have us adopt a test that requires that tax avoidance purpose need be dominant, impelling, or controlling. It seems to us that such a test would exacerbate the problems that Congress was trying to
The cases cited by respondent do not convince us to the contrary. For the most part, they lack detailed analysis of the precise problem. Perhaps the leading case for respondent‘s position is Young Motor Co. v. Commissioner, 281 F. 2d 488 (C. A. 1st Cir. 1960). That case relied in part upon the use of the article “the” instead of “a.” We have previously rejected that argument. The case also relied, as did the court below, on certain cases from the gift and estate tax areas.13 We find those cases inappo-
Finally, we cannot subscribe to respondent‘s suggestion that our holding would make purpose totally irrelevant. It still serves to isolate those cases in which tax avoidance motives did not contribute to the decision to accumulate. Obviously in such a case imposition of the tax would be futile. In addition, “purpose” means more than mere knowledge, undoubtedly present in nearly every case. It is still open to the taxpayer to show that even though knowledge of the tax consequences was present, that knowledge did not contribute to the decision to accumulate earnings.
Reversed and remanded.
MR. JUSTICE HARLAN, whom MR. JUSTICE DOUGLAS and MR. JUSTICE STEWART join, concurring in part and dissenting in part.
I agree with the Court that the Court of Appeals erred in framing its remand order in this case. However, I would modify the order in a different way, which I find more in harmony with the statutory scheme than the one the Court has chosen.
Section 532 of the Internal Revenue Code of 1954 states in relevant part:
“The accumulated earnings tax imposed by section 531 shall apply to every corporation ... formed or availed of for the purpose of avoiding the income tax with respect to its shareholders ... by permitting earnings and profits to accumulate instead of being divided or distributed.”
Section 533 (a) provides:
“For purposes of section 532, the fact that the earnings and profits of a corporation are permitted to
accumulate beyond the reasonable needs of the business shall be determinative of the purpose to avoid the income tax with respect to shareholders, unless the corporation by the preponderance of the evidence shall prove to the contrary.”
Our task is to decide what jury instruction with respect to the definition of “purpose” comports best with Congress’ intent as revealed by this statutory language and the underlying legislative history.
I am in accord with much of the Court‘s opinion. I too find that the successive changes in the wording of the statute, even when read together with the legislative history, do not help in our inquiry. I too find that the legislative history reveals a progressive congressional intention to rely more and more heavily upon a comparatively objective criterion: whether the accumulated earnings were in excess of the corporation‘s reasonable business needs. Nevertheless, it is apparent from the language of § 533 (a), and from the legislative materials, that Congress chose still to give the taxpayer a “last clear chance” to prove that, despite the unreasonableness of the accumulation by business standards, the accumulation was not due to the proscribed purpose. My difficulty with the instruction approved by the Court is that in most instances it will effectively deny to the taxpayer the “last clear chance” which Congress clearly meant to afford and substitute a very fuzzy chance indeed.
I reach this conclusion on what I regard as common-sense grounds. In practice, the accumulated-earnings provisions are applied only to closely held corporations, controlled by relatively few shareholders.1 As the Court admits, the shareholders almost always will have been advised that accumulation of corporate earnings will
Under these circumstances, the jury is very likely to believe that it must find the forbidden purpose and impose the tax whenever the Government shows that the taxpayer has accumulated earnings with knowledge of the resultant tax saving, irrespective of any contrary evidence put forward by the taxpayer. The approved instruction simply tells the jury that the taxpayer must have had a “purpose” to avoid individual taxes. In everyday speech, we commonly say that a person has a “purpose” to do something when he acts with knowledge that the thing will inevitably result. Even were the jury legally knowledgeable, it might reach the same conclusion, for, assuming that the word “purpose” as used in § 532 is synonymous with “intention,”2 there is ample authority for the proposition that an actor will be deemed to have an “intention” to cause consequences of an act if “the actor ... believes that the consequences are substantially certain to result from [the act].”3 To confront the taxpayer with this likelihood that its evidence of another purpose will be entirely disregarded is incon-
The Court, while conceding that the shareholders will know of the expected tax saving “in nearly every case,” see ante, at 309, reasons that the taxpayer will have its opportunity because “[i]t is still open to the taxpayer to show that even though knowledge of the tax consequences was present, that knowledge did not contribute to the decision to accumulate earnings.” Ibid. If, as appears from the Court‘s opinion, this exegesis is not to be a part of the jury instruction, then the Court is simply engaging in wishful thinking. If by chance the explication is to be included in the instruction, then the jury will be told to impose the tax only if it finds that a desire to avoid tax “contribute[d] to the decision to accumulate earnings.” Such an instruction would at least inform the jury that the tax consequence must actually have been in the shareholders’ minds when they decided to accumulate. However, once the shareholders are shown to have had knowledge of the tax saving, it still will be extraordinarily difficult for the taxpayer to convince the jury that the knowledge did not play some part, however slight, in the decision. Again, it seems to me that such an instruction would not give proper scope to the congressional intention that the taxpayer have a chance to prove “by the preponderance of the evidence” that it had a “contrary” purpose. I would therefore adopt an instruction less loaded against the taxpayer.
The Court of Appeals for the Sixth Circuit decided, and respondent argues, that the tax should apply only if the jury finds that tax avoidance was the “dominant, controlling, or impelling motive” for the accumulation. I agree with the Court that such an instruction would
These considerations suggest what I believe to be the best rule: the jury should be instructed to impose the tax if it finds that the taxpayer would not have accumulated earnings but for its knowledge that a tax saving would result. This “but for cause” test would be consistent with the statutory language. It would allow the Government to succeed if it could show, with the aid of the § 533 (a) presumption, that without the spur of tax avoidance the taxpayer would not have accumulated the earnings, thus giving effect to the presumption and fulfilling Congress’ desire to penalize those with a “purpose” to avoid the tax. It would permit the taxpayer to escape the tax if it could convince the jury that for other, perhaps irrational, reasons it would have accumulated even had no tax saving been possible, thus affording the opportunity for proof of a “contrary” purpose which Congress intended to provide. In addition, I believe that this instruction would be relatively easy for a jury to understand and apply. For all of these reasons, I consider it preferable to the standard adopted by the Court.