Commonwealth v. Brush Elec. Light Co.

Opinion, Mr. Justice Williams : The “ conclusions of law ” reached by the learned judge of the court below in this case embrace four distinct propositions. The first of these, holding that the'1 defendant is not a manufacturing company, is sustained by Commonwealth v. Light & Power Co., ante, 105, decided at the present term. The second affirms that the capital stock used by the defendant to pay for the use of the appliances obtained from the New England Electric Light Co., to enable it to enter upon its business is invested in patent rights. This conclusion is overturned by Commonwealth v. D. & P. Teleg. Co., ante, 121, also decided at the present term. The third holds the act of 1879, so far as the third section comes under notice in this case, to be constitutional. This is justified by Commonwealth v. Canal Co., 123 Pa. 594. Tax laws have not yet been devised that will work out absolute equality of burden. If the constitution requires this, we have no tax-laws. Taxes must be levied under general laws; and where the measure of value and the rate are uniform and applicable to all the members of the given class, the incidental hardships and inequalities must be borne. The act of 1879 taxes the capital stock of corporations. But some stocks are of much and some of little value ; how are these to be distinguished ? The act looks properly at the earning capacity of the stock or the business it represents, as affording the best measure of its value. It takes the earnings that are divided, and adds those that are carried to sinking fund, and the total thus made is used as the standard of valuation. If these [155] amount to six per centum or upward, the stock is worth its face value or more, and for purposes of taxation it is valued at par. The rate of taxation slides upward with the sum of the amounts carried to dividend account and to sinking fund. If this amounts to just six per cent on the capital, the rate is three mills on the dollar of the par value. If it is seven per cent, the rate is three and a half mills on the dollar, and so on at the rate of a half mill on the dollar for every one per cent of advance in the earnings, as shown by combining the items selected for this purpose. But, if this total is below six per cent, it is assumed that the stock is worth less than par, and provision is made for an appraisement of its value. When this is made, the rate of three mills is applied to the appraised value in order to ascertain the amount of the tax. Why the net earnings were not adopted as the proper measure of value, instead of so much of them as may be divided or carried to the sinking fund, it is not material to inquire. The standard adopted is applied impartially. Whether it is the best one that could have been adopted or not, is more a legislative than a judicial question, and the learned judge was right in his conclusion that the provisions of the act of 1879, relating to this subject, are not objectionable on constitutional grounds. The remaining proposition is that which fixes and declares the amount of the tax due. Whether this is right or not depends on whether the fact that a dividend is declared in a given year is conclusive evidence that the money was earned during that year. If there can be no explanation of the circumstances under which the dividend is made, or the ■ time when the money was earned, the learned judge computed the amount due at the proper rate, and upon the proper valuation. If, on the other hand, the dividend is prima facie evidence only, then both the valuation and the rate adopted are, upon the facts found, incorrect. The stock of the defendant company is one million dollars. It declared dividends in 1887 amounting to eleven per cent on the par value of the stock, and, if this was all that appeared on the subject, the learned judge correctly held the stock to be subject to a tax of five and one half mills on its par value. But he found as a fact that the dividends were made, not out of the earnings of 1887, but out of the accumulated earnings [156] of several years ; and that the stock was really worth during that year but thirty-eight dollars and fifty cents per share, having a face value of one hundred dollars. He does not apportion the earnings among the six or seven years during which the company had been in business. But, for purposes of illustration, let us suppose that for four years it had earned an average of three per cent. Its returns to the auditor general, showing its earnings and financial condition each year, furnished the elements for the appraisement of the stock, and upon the valuation so made the rate of three mills has been regularly applied, and the taxes paid down to 1887. In that year the company decides, for some reason, not to carry the accumulations longer in its treasury, but to divide them. Its business is not increased; the earning power of the stock has not been increased; its intrinsic value remains as before, at about one third of its face value; but the state tax has advanced from about one mill to five and one half mills on the dollar of the face value. On shares whose value has not increased, the taxes are multiplied five and one half times. This results from giving to the dividend the effect of conclusive proof that the money it represents was earned during the year. The act of 1879 does not require this, and the consequences are so harsh, and work such gross inequality, that nothing less than a plain expression of the legislative intent would induce us to hold such a doctrine. If the tax is assessed on the basis of the actual value, the result would be as follows: Stock, face value, one million dollars; actual value, three hundred and eighty-five thousand dollars. If the dividend is conclusive of the value, then the stock must be valued at par. The rate would then be one half mill for each one per cent of the dividend, or five and one half mills on the par value of the stock, equal tó five thousand five hundred dollars. We are of opinion that the dividend should be regarded as evidence, prima facie, that the money was earned during the tax year in which it was declared. The burden of proof is then on the corporation. If it can show clearly that the dividend was made out of the accumulated earnings of previous years, in none of which did its earnings reach six per cent, and in all of which it paid taxes on the appraised value of its stock, the prima facies is overcome, and the tax should be levied on the actual value, ascertained as the law directs. This is not in con [157] flict with Lehigh Crane Iron Co. v. Commonwealth, 55 Pa. 448, for the profits divided in that case were what remained after the payment, year by year, of six per cent dividends. The judgment is reversed, and judgment is now entered as follows: Tax at three mills on stock, Stock $1,000,000, valued at $885,000, $1,155.00 Int. at twelve per ct., from June 25, 1889. Attorney general’s commissions, 57.75