Lehigh Crane Iron Co. v. Commonwealth

The opinion of the court was delivered, May 27th 1867, by Agnew, J. — Notwithstanding some technical objections which can be set up, it cannot be denied that the bringing of a suit ought to impel a party upon whom the writ has been served to ascertain, if not already informed, what has been settled against him by the auditor-general and state treasurer, and to appeal if he thinks himself injured. It is sufficient to say, however, we look upon this point as settled by authority: Hays v. Commonwealth, 3 Casey 272 ; Hultz v. Commonwealth, 3 Grant 61; City of Philadelphia v. Commonwealth, 2 P. F. Smith 451. This corporation began business with a capital of $100,000. It is not denied that it has taken from its profits actually earned the sum of $900,000, added it to the original capital, and from time to time declared and paid dividends to the stockholders upon the capital as it was thus increased. The auditor-general and [451] state treasurer have charged, under the Act of 12th April 1859, a tax of one-half mill upon every one per cent, of the profits thus added to the capital, and the court below sustained the charge. This is according to the spirit and intention of both the Acts of 1844 and 1859, and is substantial justice. The earnings of the original capital clearly belonged to the owners of the stock, in the proportion of their shares. So long as they remained in the profit and loss account, there was no division, express or implied. But when added to the capital, and made the basis of dividends to the stockholders, it is clear that they reaped their actual benefit, both in the receipt of new profits and the increased value of their stock to the amount of the superadded capital. Had the corporation expressly declared this surplus a dividend in stock, it would have been taxable according to authority: Commonwealth v. C. P. & A. Railroad Co., 5 Casey 370. But what is the difference whether the thing be done by a formal resolution, denominating it a stock dividend, or by actually making it stock, and giving the stockholder the full benefit of it? He has no certificate to denote his new stock, but he has the stock itself, realizes its profits, and can dispose of it as its real owner. Nor is the dividend the true subject of taxation, although it is the legal standard. The 33d section of the Act of 29th April 1844 provides that the tax chargeable on the capital stock on which a dividend or profit shall be made and declared of 6 per cent, or more, shall be one half mill on each 1 per cent, of such dividend or profit. The profit is thus used only to measure the value of the capital stock. This is rendered more evident by the provisions immediately following, for the valuation of the stock by appraisement, when the dividends fall below 6 per cent., and charging upon the appraised value a tax of three mills on the dollar; a sum precisely equivalent to the half mill of each 1 per cent, of dividend when at 6 per cent. It is made still more obviious by the Act of 1859, which charges upon the capital a tax of one half mill for each 1 per cent, of dividend made or declared ; and provides for a valuation when no dividend is declared. It is evident, therefore, that the intention of the legislature was to levy the tax upon the capital stock according to its value, and that the dividend of profit earned by the stock was but a means of ascertaining its value. But as this means of measurement lies entirely in the hands of the corporation, to hold that it may put its stockholders into the actual possession and enjoyment of thé profits, without formally declaring a dividend, and thereby escape taxation, would be to enable it to defraud the revenue. This case itself clearly illustrates how unjust such a rule would be. On $100,000 this company has actually earned 900 per cent., upon which, as profits, the Commonwealth is entitled to one half mill upon every 1 per cent. To enable it to escape taxation by [452] calling the profits capital, is mere legerdemain, when the sum is in fact added to the stock of the shareholders, and dividends paid upon the entire sum. It is manifest this is a substantial distribution of these profits, and what is this but making a dividend, whether it is declared to he done or not; and the law provides for a dividend made. Although not alike in the facts, the principle of this case does not differ from that of the Citizens’ Passenger Railroad Co. v. City of Philadelphia, 13 Wright 251, where, on a paid-up capital of $192,750, dividends were declared upon a nominal capital of $500,000, in order to escape the tax on surplus dividends over 6 per cent., by this means lessening the rate of the dividend, and absorbing that to which the city was fairly entitled, after paying to the stockholders six per cent, upon their actual investment. Judgment aifirmed.