Welch v. Henry

Wickhem, J.

The sole'question upon this appeal is the constitutionality of sec. 6, ch. 15, Laws of 1935, which is *322 entitled, “Emergency Relief Tax on Certain 1933 Dividends.”

The material portions of the statute here in question are as follows:

“(1) For the purpose of this section.

“(a) ‘Person’ shall mean persons other than corporations as defined in subsection (1) of section 71.02.

“(b) ‘Dividends’ shall mean all dividends derived from stocks whether paid to shareholders in cash or property received in the calendar year 1933, or corresponding fiscal year, and deductible under subsection (4) of section 71.04.

“(d) ‘Net dividend income’ shall mean gross dividend income less seven hundred and fifty dollars.

“(2) To provide revenues for relief purposes there is levied and there shall be assessed, collected, and paid, an emergency tax upon the net dividend income of all persons in the calendar year 1933 or corresponding fiscal year at the following rates:

“(a) On the first two thousand dollars of net dividend income or any part thereof, at the rate of one per cent.

“(b) On the next three thousand dollars of net dividend income or any part thereof, at the rate of three per cent.

“(c) On all net dividend income above five thousand dollars, at the rate of seven per cent.”

Plaintiff’s first contention is that the act is discriminatory and obnoxious to the provisions of the Fourteenth amendment to the United States constitution as well as to secs. 1 and 22, of art. I, Wisconsin constitution. These sections read as follows:

“Section 1. All men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

“Section 22. The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles.”

*323 Both plaintiff and defendant concede that while the legislature may classify persons for purposes of taxation, the classification must be based on reasonable differences or distinctions which distinguish the members of a class from those of another in respects germane to some general and public purpose or object of the particular legislation. Louisville Gas & Electric Co. v. Coleman, 277 U. S. 32, 48 Sup. Ct. 423. This rule is well settled and calls for no further exposition here. Plaintiff’s claim is based upon the fact that under the law as it existed in 1933, and upon which plaintiff reported and paid his income taxes for that year, there was allowed to him as a deduction dividends received from Wisconsin corporations. The emergency relief tax enacted in 1935 levied a graduated tax upon dividends from Wisconsin corporations received in 1933 and at that time deductible from plaintiff’s gross income. It is contended that there is no difference between plaintiff and persons receiving no income from dividends paid by Wisconsin corporations that reasonably warrants such a classification. It is not contended that the legislature in 1933 could not have abolished the exemption of this dividend income if the net result had merely been to throw into the total of assessable income for the year 1933 the Wisconsin dividend of a particular taxpayer and subject it to the normal taxes for that year. Plowever, had the legislature done this, the result would have been a general income tax, and the dividend income would have been treated on a parity with all of the taxpayer’s other income. It would have been subject to the same deductions, and he could have subtracted from it the same losses that he could as against any other sort of income and it would have been taxed on an absolute parity with such other income. It is obvious that the question here is quite different. The question is whether the legislature having theretofore exempted dividends received from Wisconsin corporations from a normal tax may by *324 separate act subject them to a special tax for emergency relief purposes. It is clear to us that there is but a single ground of differentiation, and that the classification must stand or fall upon this ground. Does the fact that the taxpayers who< received dividends of Wisconsin corporations were exempt from a normal tax in 1933 so differentiate them from other persons receiving incomes during this year as to justify the subsequent levy upon them of a special income tax to meet a particular public emergency? As thus stated, two questions are involved: (1) Is the classification a valid one, and (2) whatever the answer to this may be, Is there in fact any discrimination against a person receiving income from Wisconsin dividends? If the first question receives an affirmative answer, the law is valid 'so far as its alleged discriminatory features are concerned. If the second question receives a negative answer, plaintiff has no standing to attack it, since his rights are not adversely affected. It is our conclusion that the fact that the income had previously been exempt from a normal tax is a sufficient reason for giving it different treatment upon the emergency tax. It does not impress us as material upon the issue of discrimination whether the previous exemption was accomplished by taxing all income except that derived from dividends of Wisconsin corporations or by taxing all income and allowing the deduction of income from this source. These aré mere matters of form. The net result was that this income had not been subjected to a normal tax. In searching for subjects of emergency taxation, the legislature for this very reason might impose a special tax for emergency relief upon the recipients of this type of income. The reason for imposing a special burden is as valid as that for exempting it from the normal burden. See State ex rel. Atwood v. Johnson, 170 Wis. 218, 175 N. W. 589; Chicago & N. W. R. Co. v. State, 128 Wis. 553, 108 N. W. 557. Some point is made of the fact that the *325 emergency tax upon this particular type of income is at a rate higher than the normal tax. We are not satisfied that such is the case. While the rates are nominally higher, it may well have been considered that this income, if added to the balance of the taxpayer’s income, would normally be taxed in the higher rather than the lower brackets of the normal tax, and this factor could be taken account of in establishing rates for the special tax. Recognition of this principle appears to have been given in the case of Colgate v. Harvey, 296 U. S. 404, 56 Sup. Ct. 252. Whatever may be the proper conclusion as to the classification, we do not think plaintiff can claim to have been discriminated against, when the whole pattern of tax legislation is considered. It is not apparent to us that one who is exempt from the burden of annually responding to a normal income tax has been injured by requiring him to meet that of an occasional emergency tax. It might with equal or greater force be argued that the original act discriminated against persons receiving income from sources other than dividends of Wisconsin corporations. This being true, plaintiff has no standing to object to the classification adopted.

It is also contended that there is discrimination as between members of the same class for the reason that only a fixed sum is deductible from the net income which does not vary in accordance with the circumstances or amount of the net income of a stockholder receiving dividend income from Wisconsin corporations. We do- not consider this objection to be valid. Considering the class to consist of all persons receiving dividends from Wisconsin corporations, all are treated alike, taxed alike, given the same deduction, and the same rate of tax. So long as this is properly treated as an income tax, the progressive character of the rates cannot be considered to be objectionable. It is our conclusion that there is no clear indication here that the purpose or effect of *326 the act is a hostile or oppressive discrimination against particular persons or classes. Beers v. Glynn, 211 U. S. 477, 29 Sup. Ct. 186; Citizens’ Telephone Co. v. Fuller, 229 U. S. 322, 33 Sup. Ct. 833.

The foregoing consideration of plaintiff’s claim that the act is discriminatory took no account of the retroactive features of the law under examination. It now becomes proper1 to consider plaintiff’s objection that the law is invalid because of these features. It is plaintiff’s claim that the legislature is authorized to make income tax provisions retroactive during the year of enactment and during the preceding year where the tax upon such preceding year has not been determined and paid, but that it is beyond the power of the legislature to tax dividends received in 1933 by a statute passed in 1935. We deem this objection to be unsound. It was held in Appeal of Van Dyke, 217 Wis. 528, 259 N. W. 700, that an income tax which is given retroactive effect by the legislature cannot properly be assailed on constitutional grounds if it applies to the year in which the law is enacted or if it applies to prior but recent transactions. This is also' the rule as announced by the United States supreme court. Brushaber v. Union Pacific R. Co. 240 U. S. 1, 36 Sup. Ct. 236; Lynch v. Hornby, 247 U. S. 339, 38 Sup. Ct. 543; Cooper v. United States, 280 U. S. 409, 50 Sup. Ct. 164. In the Cooper Case it is said:

“That the questioned provision cannot be declared in conflict with the federal constitution merely because it requires gains from prior but recent transactions to be treated as part of the taxpayer’s gross income has not been open to serious doubt since Brushaber v. Union Pacific R. Co. 240 U. S. 1, and Lynch v. Hornby, 247 U. S. 339.”

It is our conclusion, (1) that under this rule the legislature may measure an income tax by the income of a year sufficiently recent so that the income of that year may reasonably be supposed to have some bearing upon the present *327 ability of the taxpayer to pay the tax; and (2) that the legislature, subject to this limitation, may go back at least to the most recent year for which they have returns furnishing data upon which to estimate the total return of the tax to the state. While the present tax may approach or reach the limit of permissible retroactivity, it does not exceed it.

The next two contentions of plaintiff may properly be considered together. They are that the tax is not authorized by the authority contained in sec. 1, art. VIII, Wisconsin constitution, for the imposition of taxes on income because while it purports to be a tax upon income, it is either, (a) a graduated tax ..on gross receipts, in which case it is void under the authority of Ed. Schuster & Co. v. Henry, 218 Wis. 506, 261 N. W 20, and Stewart Dry Goods Co. v. Lewis, 294 U. S. 550, 55 Sup. Ct. 525; or (b) that, being levied solely upon income from a-particular kind of property, the subject of the tax is so closely bound up with the ordinary attributes of ownership that it amounts to a tax upon the property itself and as such violates the constitutional requirement of uniformity. Sec. 1, art. VIII, provides as follows:

“The rule of taxation shall be uniform, and taxes shall be levied upon such property with such classifications as to forests and minerals, including or separate or severed from the land, as the legislature shall prescribe. Taxes may also be imposed on incomes, privileges and occupations, which taxes may be graduated and progressive, and reasonable exemptions may be provided.”

The general principle underlying these contentions is that a tax measured in terms of income from a business, occupation or a particular kind of property is not an income tax within the meaning of that term as used in the constitution, but that it constitutes either an occupation or privilege tax, in which case it must not be levied retrospectively, or a property tax, in which case it must satisfy the constitutional re *328 quirements of uniformity. The contention proves too much. If there is any validity to the contention, then a tax may only be considered an income tax if levied upon all the actual net income of a taxpayer. The exclusion from the operation of a taxing statute of the income from any particular source would destroy the income character of the tax. This would follow whether the statute expressly subjected all income to its operation, and then allowed as a deduction income from particular kinds of property, or was made applicable to less than all of the taxpayer’s income. As stated before, these are mere matters of form. Hence, if plaintiff’s contention be true, the income tax law of 1933 was no more an income tax than is the special act under examination here. It is our conclusion that a tax upon the net income from a particular kind of property is within the constitutional description of income taxes, and is not a privilege tax or one upon the property from which the income is derived. This is, of course, true only if the tax be upon the net income. A tax upon the gross income of particular kinds of property or particular taxpayers or a particular business is doubtless within the condemnation of the Stewart and the Schuster Cases, supra, and constitutes in effect a tax upon the property itself. How- ( ever, taxation upon income from dividends falls in a different class. In cases to which this tax is applicable, the income is in a real sense net income to the taxpayer. The expenses of producing the income have been allowed to the corporation prior to its distribution as a dividend. There are no losses or expenses to be deducted so far as this income is concerned, and if there were, the gross deduction of $750 may well be supposed sufficiently to meet any minor expenses that may conceivably be imagined in connection with the production of the income. Thus, the tax is not upon gross receipts, or at least the gross receipts are net receipts so far as the particular item of income is concerned. It is our *329 conclusion, therefore, that the tax in question constitutes an income tax; that a reasonable deduction is allowed to1 the taxpayer; and that being an income tax, there is no constitutional objection to the imposition of a graduated or progressive rate of tax upon such income. These conclusions sufficiently deal with the contention that the tax is a privilege tax and that it cannot be retroactively applied. It follows that the order must be reversed.

By the Court. — Order reversed, and cause remanded with directions to sustain the demurrer.