State Ex Rel. Commissioner of Revenue v. Speizman

DbNNy, J. This appeal turns on whether or not a gain resulting from the involuntary conversion of a capital asset in 1946, was taxable income under the income tax law of North Carolina. We think such gain was taxable, and that the additional assessment against the taxpayer was legally and properly made. Net income means the gross income of a taxpayer, less deductions expressly authorized by Article 4, Schedule D, Chapter 105 of our General Statutes. G.S. 105-141, Subsec. 1, defines “gross income,” and the essential part thereof reads as follows: “The words ‘gross income’ mean the income of a taxpayer derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, business, commerce or sales, or dealings in property, whether real or personal, located in this or any other State or any other place, growing out of the ownership or use of or interest in such property, also from interest, rent, dividends, securities, or the transactions of any business carried on for gain or profit, or gains or profits, and income derived from any source whatever and in whatever form paid.” Subsection 2 of G.S. 105-141, sets forth a list of items which are exempt from taxation under our income tax law, but the list does not include gains from involuntary conversion of capital assets. The appellee contends the provisions contained in G.S. 105-142, subsec. 1, require the Commissioner of Eevenue to follow the Federal law in respect to gains resulting from an involuntary conversion of a capital asset. This subsection is as follows: “The net income of a taxpayer shall be computed in accordance with the method of accounting regularly employed in keeping the books of such taxpayer, but such method of accounting must be consistent with respect to both income and deductions, but if in any case such method does not clearly reflect the income, the computation shall be made in accordance with such method as in the *462 opinion of the commissioner does clearly reflect the income, but shall follow as nearly as practicable the federal practice, unless contrary to the context and intent of this article.” The Federal statute governing' involuntary conversion is Section 112 (f), Internal Revenue Code, 26 U.S.C.A. 95, and reads as follows: “If property (as a result of its destruction in whole or in part, theft or seizure, or an exercise of the power of requisition or condemnation, or the threat or imminence thereof) is compulsorily or involuntarily converted into property similar or related in service or use to the property so converted, or into money which is forthwith in good faith, under regulations prescribed by the Commissioner with the approval of the Secretary, expended in the acquisition of other property similar or related in service or use to the property so converted, or in the acquisition of control of a corporation owning such other property, or in the establishment of a replacement fund, no gain shall be recognized, but loss shall be recognized. If any part of the money is not so expended, the gain, if any, shall be recognized to the extent of the money which is not so expended (regardless of whether such money is received in one or more taxable years and regardless of whether or not the money which is not so expended constitutes gain).” It is clear that a gain resulting from the involuntary conversion of a capital asset is not exempted from taxation under the Federal income tax law unless the gain is “expended in the acquisition of other property similar or related in service or use to the property so converted, or in the acquisition of control of a corporation owning such other property,” under regulations prescribed by the Commissioner, with the approval of the Secretary. Therefore, it seems clear the gain is taxable under our income tax law, unless G.S. 105-142 relative to the computation of net income, has the effect of incorporating in the income tax article of our Revenue Act, substantive features of the Federal income tax law. We do not think this provision has that effect. For example, the Federal statute provides for “long term” and “short term” capital gains on a different basis; while our Revenue Act recognizes no distinction between “long term” and “short term” capital gains. In fact our law recognizes no distinction between “capital gains” and any other type of taxable income. Therefore, it would seem to be just as reasonable to contend that the Federal law relative to capital gains should be taken into consideration in computing net income, within the meaning of G.S. 105-142, as it is to contend the Federal statute relative to involuntary conversion of a capital asset should be given effect in making such computation. The appellee concedes that the capital gain of $35,200 would have been taxable as such, had the taxpayer not elected to expend it in the construction of a building similar or related in service or use to the building *463 destroyed by fire. Tbis would be so under tbe Federal as well as tbe State law. While tbis is a case of first impression with us, tbe Commissioner of Revenue has consistently ruled tbat gain realized from involuntary conversions of capital assets are taxable, regardless of how such funds may be expended. See P-H, State and Local Service, North Carolina, Paragraph 13,179. Tbe administrative interpretation of a 'statute, acquiesced in over a long period of time, should be given consideration in tbe construction of tbe statute by tbe Courts. Knitting Mills v. Gill, Comr. of Revenue, 228 N.C. 764, 47 S.E. 2d 240. We think tbe conclusion we have reached is tbe correct one, and is supported by thé recent action of our General Assembly. While tbis proceeding was pending in tbis Court, tbe General Assembly enacted House Bill No. 1099, amending Section 1, Art. 4, Schedule D, subcbapter 1 of Chapter 105 of tbe General Statutes, to be designated Section 105-144.1, so as to provide under certain conditions for tbe exemption of gains resulting from tbe involuntary conversion of capital assets. Tbis Act adopts in every essential particular tbe provisions of Section 112 (f), of tbe Internal Revenue Code, 26 U.S.C.A. 95, and further provides tbat tbe Commissioner may in bis discretion prescribe tbe rules and regulations under which such capital gains may be expended or be may “apply tbe Federal rules, rulings and Federal Court decisions pertinent to tbe administration and construction of Sec. 112 (f) of tbe Federal Internal Revenue Code, but tbe Commissioner shall not be bound by such rules and regulations, rulings and decisions.” Tbe Act also provides tbat it shall affect pending litigation and shall be in effect from and after its ratification, which was 22 April, 1949. On 5 May, 1949, the Commissioner of Revenue of North Carolina promulgated a regulation for the purpose of administering House Bill No. 1099, in which he adopted the Federal rules and regulations, rulings and Federal Court decisions pertinent to the administration and construction of Section 112 (f) of the Internal Revenue Code, and filed a copy of the regulations in the office of the Secretary of State, as required by Chapter 754 of the Session Laws of 1943, G.S. 143-195. In considering the provisions of House Bill No. 1099, we think it can affect only such claims for exemption from income tax as may arise from gain resulting from the involuntary conversion of capital assets where such gains are expended in good faith, pursuant to a regulation duly promulgated by the Commissioner of Revenue. The mere statement in the Act that it is to affect pending litigation, will not be construed as sufficient authority to authorize the Commissioner of Revenue to refund to a taxpayer a tax legally assessed and collected prior to the enactment of the Act; and the fact that the tax was paid under protest does not affect the legality of the assessment. *464 Tbe court below committed error in reversing tbe decision of tbe Commissioner of Revenue, and tbe judgment is Reversed.