C. T. H. Corporation v. . Maxwell, Comr. of Revenue

Winborne, J. Two questions arise upon the decision below on the agreed facts presented on this appeal: (1) Was the plaintiff doing business in this State in the years 1934 and 1935 within the meaning of, and liable for franchise tax under, see. 211 of the Revenue Acts of 1933 and 1935? (2) Is the real estate held by plaintiff, as described, “property in this State of” the plaintiff within the meaning of subsection 2 of sec. 211 of the Revenue Acts of 1933 and 1935 providing a basis for imposing a franchise tax? The court below ruled affirmatively as to each. This is in harmony with our views. The Revenue Act of 1933 imposes a franchise tax upon “every foreign corporation doing business in this State and owning or using any part, or all, of its capital or plant in this State as of 1 April.” Sec. 211, ch. 445, Public Laws 1933. The Revenue Act of 1935 imposes a like tax upon “every foreign corporation permitted to do business in this State and owning or using any part, or all, of its capital or plant in this State.” Sec. 211, ch. 371, Public Laws 1935. The two sections differ only in descriptive phrases, “doing business” in the first, and “permitted to do business” in the second. Therefore, it is necessary first to determine the meaning of the words “doing business.” On the view we take this as determinative of this phase of the controversy. The rule applicable to the construction of statutes is that when they make use of words of definite and well known sense in the law, they are received and expounded in the same sense in the statute. Asbury v. *810 Albemarle, 162 N. C., 247, 78 S. E., 146; Borders v. Cline, ante, 472, 194 S. E., 826. “ ‘Business’ is that wbicb occupies time, attention and labor of man for purposes of livelihood or profit,” Bouvier’s Law Dictionary. “It is a very comprehensive term, which embraces everything about which a person can be employed.” Black’s Law Dictionary. The phrase “doing business in the State” has been the subject of consideration in several decisions of this Court with respect to' the statute relating to service of process on foreign corporations. In Timber Co. v. Ins. Co., 192 N. C., 115, 133 S. E., 524, Connor, J., said: “No all-embracing rule as to what is ‘doing business’ has been laid down. The question is-one of fact, and must be determined largely according to the facts of each individual case, rather than by the application of fixed, definite, and precise rules.” In Commercial Trust Co. v. Gaines, 193 N. C., 233, 136 S. E., 609, Connor, J., said: “It has been generally held that a foreign corporation cannot be held to be doing business in a state, and therefore subject to its laws, unless it shall be found as a fact that such corporation has entered the state in which it is alleged to be doing business, and there transacted, by its officers, agents or other persons authorized to act for it, the business in which it is authorized to engaged by the state under whose laws it was created and organized. The presence within the state of such officers, agents or other persons, engaged in the transactions of the corporation’s business with citizens of the state, is generally held as determinative of the question as to whether the corporation is doing business in the state,” citing Timber Co. v. Ins. Co., supra, and other-cases. In Ruark v. Trust Co., 206 N. C., 564, 174 S. E., 441, the defendant, a foreign corporation with no process officer or agent in the State, having been named as trustee in more than a hundred deeds of trust creating liens on property situate in North Carolina under which it was vested with title to the property described therein, and was authorized to take possession thereof, collect the rents and foreclose in case of default, had exercised the power of sale in a number of the deeds of trust, reported the same to the court and sent its agents into the State for the purpose of investigating and looking after the properties in its capacity as trustee, Stacy, C. J., speaking to the question: “Is the defendant doing business in this State, or does it have property here so as to render it amenable to process under O. S., 1137 said: “A similar fact situation appeared in Reich v. Mortgage. Corp., 204 N. C., 790, 168 S. E., 814, where the ruling that defendant owns property and is doing business in this State was upheld as a matter of course. The same conclusion seems to be well supported in the instant case (citing authorities). The *811 expression ‘doing business in this State’ as used in C. S., 1137, means engaging in, carrying on, or exercising in this State, some of the things, ' or some of the functions, for which the corporation was created.” 14-A C. J., 1270. See, also, 12 R. C. L., 71. A broader meaning is to be given the words “doing business” as used in a tax statute. Fletcher Cyclopedia Corporations, Vol. 18, p. 691, sec. 8804. An isolated sale or other business transaction is not sufficient to bring the corporation within that meaning. It is sufficient, however, “if a substantial part of its regular business is carried on.” 37 Cyc., 859. The facts in the present case tend to show that plaintiff was doing-in North Carolina a substantial part of the business for which it was organized. The plaintiff contends, however, that it has not maintained an organization for the purpose of profit or gain, but, on the contrary, it was organized solely for the purpose of liquidating collateral bonds of Nolting First Mortgage Corporation, and that its activities have consisted of holding the legal title to properties purchased at foreclosure sales when mortgage notes on such properties were held as security for collateral trust bonds, and that, therefore, it was not “doing business in this State.” It relies upon the decisions of the Supreme Court of the United States in Zonne v. Minneapolis Syndicate, 220 U. S., 187; McCoach v. R. R., 228 U. S., 295; and U. S. v. Emery, Bird, Thayer Realty Co., 237 U. S., 28. These cases relate to a statute (36 Statutes at Large, ch. 6, sec. 38) which imposes special excise tax on corporation, . . . organized for profit . . . and engaged in business . . . with respect to the carrying on or doing business by such corporation.” They, are distinguishable from the instant case. In the case of Von Baumbach v. Land Co., 242 U. S., 503, Justice Day reviews the decisions of the Supreme Court of the United States' in these corporation tax cases, distinguishing those cases above holding that the corporations were not doing business, from those holding to the contrary, beginning with the case Flint v. Stone Tracy Co., 220 U. S., 107. He states: “It is evident, from what this Court has said in dealing with the former eases, that the decision in each instance must depend upon the particular facts before the Court. The fair test to be derived from a consideration of all of them is between a corporation which has reduced its activities to the owning and holding of property and the distribution of its avails and doing only the acts necessary to continue that status, and one which is still active and is maintaining its organization for the purpose of continued efforts in the pursuit of profit and gain and such activites as are essential to those purposes.” In the instant case the plaintiff is distinct entity, separate and apart from the Nolting First Mortgage Corporation. It has voluntarily filed *812 its charter and become regularly domesticated with authority and power for itself as such to carry on real estate business in this State. It bought at trustees’ sales real properties located in 28 towns and cities of the book or investment value of more than $650,000, and of assessed value of approximately that amount, as shown by its 1935 report, duly verified. It has given notes for the purchase price on parcels of property so purchased and secured same by deeds of trust, both in form tending to show activities in “holding, maintaining and operating same” with the view of ultimately discharging the indebtedness evidenced by the note, and realizing a surplus over and above the purchase price — a profit to it. It has leased its properties and sent its officers and employees into the State on business incident to its properties so purchased. Its business is not limited to an isolated case. The cases are numerous. The volume is large. Plaintiff further contends that if it be liable for the franchise tax for the years in question, the recovery should be limited to $10.00 per year. It contends that “the entire capital consists of five shares of stock of the par value of $1 each and it has no surplus or undivided profits.” The assessments are made under (1) that portion of subsection 2 of sec. 211 of ch. 445, Public Laws 1933 (Revenue Act of 1933), which reads: “The proportion of capital stock, surplus and undivided profits allocated for franchise taxation under this section shall in no case be less than the total assessed value of real and personal property in this State of each such foreign corporation;” and (2) that portion of subsection 2 of sec. 211 of ch. 371, Public Laws of 1935 (Revenue Act of 1935), which is verbatim of the above subsection of the 1933 act, with the following addition: “Not less than its investment and/or actual book value of real and personal property in this State.” Each statute further provides that “The tax imposed . . . shall in no case be less than ten dollars.” The defendant, in assessing the franchise tax against the plaintiff for the years 1934 and 1935, used as the basis for determining the tax the assessed values of the real property in the State of North Carolina as were shown in the verified reports, as amended, filed by the plaintiff. We, therefore, come to consider the second question: Applying the rules of construction hereinabove stated to the words “property in this State of” as used in. the portion of subsection 2, sec. 211 of the Revenue Acts of 1933 and 1935, does the real estate held by plaintiff come within their meaning? Webster defines “property” to be “the exclusive right to possess, enjoy, or dispose of a thing; ownership. In a broad sense, any valuable right or interest considered primarily as a source or element of wealth. In a narrower sense, ‘property’ implies exclusive ownership of things; as where a man owns a piece of land or a *813 borse. In a broader sense, ‘property’ includes in tbe modern legal systems practically all valuable rights.” This Court, in Vann v. Edwards, 135 N. C., 661, 47 S. E., 784, in an opinion by Walker, J., speaking to tbe separate property of a married woman, said: “Tbe word ‘property’ is of very broad signification. It is defined as rightful dominion over external objects; ownership; tbe unrestricted and exclusive right to a thing; the right to dispose of the substance of a thing in every legal way, to possess it, to use it and to exclude every one else from interfering with it. Property is the highest right a man can have to anything, being used for that right which one has to lands or tenements, goods or chattels, which no way depends on another man’s courtesy. A right imparting to the owner a power of indefinite user, capable of being transmitted to universal successors by way of descent, and imparting to the owner the right- of disposition,” quoted and cited in part in Stedman v. Winston-Salem, 204 N. C., 204, 167 S. E., 813. Webster defines “of” as “indicating the possessive relationship; belonging or pertaining to; or connected with.” “Property of” does not necessarily mean ownership in fee simple. It means the ownership of any valuable right in property. The facts in the present case tend to show conveyances to the plaintiff of property over and in which it is vested with power and authority tantamount to ownership in fee simple. An analysis of the enumerated powers makes it well nigh impossible to conceive of any right of control or ownership that has not been expressed. Then, too, the plaintiff has executed notes for the purchase price and has secured those notes with deeds of trust in the form usually used in real estate transactipns for conveying property to which the grantor has fee simple title, with provision for revesting of title upon payment of the indebtedness. The plaintiff, through its proper officers, also has filed with the defendant reports duly verified in which it is stated that the property in question is owned by the plaintiff. While the transactions have been ingeniously devised and executed, the facts lead us to the conclusion that the real estate comes within the purview of the statute. The plaintiff, when it domesticated, must have contemplated as much. It was of the same mind when it filed reports for franchise tax purposes. The judgment below will be Affirmed.