Lentini v. Department of Treasury

Levin, J. The question presented is whether annual installments of a Michigan state lottery prize, unpaid at the winner’s death, are exempt from the inheritance tax1 under a provision of the — 553 — Lottery Act2 providing that no state or local tax "of any kind whatsoever shall be imposed upon the proceeds from a prize” awarded by the state lottery. We hold that state lottery prize proceeds, including the right to transfer and receive an inheritance of such proceeds, were so exempt. i Rose D’Amico won a state lottery prize entitling her to $1,000,000 payable in twenty annual installments of $50,000. Fourteen installments were unpaid when she died in March, 1981. The inheritance tax examiner, in accordance with the Department of Treasury’s eleven-year practice of not seeking to tax state lottery proceeds, did not include the lottery proceeds in the December, 1981, calculation of the inheritance tax. The tax was redetermined in April, 1986, after a September, 1983, Department of Treasury decision to seek to collect inheritance tax on the transfer of the right to receive future installments of a decedent’s lottery winnings. The additional tax sought to be imposed is $13,527.70. The probate court ruled that state lottery proceeds were not, before the 1988 repeal of the statutory provision exempting state lottery proceeds from the imposition of tax, subject to inheritance tax.3 1988 PA 516. The Court of Appeals — 554 — reversed, stating that the exemption was for a "direct” tax on property and did not apply to a tax on the privilege of transferring or receiving property by inheritance.4 ii The United States Supreme Court held in 1900 that legislation exempting securities issued by the United States government from taxation did not exempt the securities from federal estate or state inheritance taxation.5 State court cases generally adopt the analysis employed by the United States Supreme Court.6_ — 555 — Judicial opinions so holding draw a distinction, adopted by the Court of Appeals and in the dissenting opinion, between a "direct” and an "indirect” tax, and distinguish between a direct tax on property or income and a tax on the "privilege” of transferring or receiving property, and sometimes explain their results by characterizing an estate or inheritance tax as an excise tax. The courts so holding also invoke, as did the Court of Appeals and the dissent, rules of construction disfavoring exemption from taxation.7 — 556 — The most telling rule of construction, however, is often a court’s teleological assessment of the consequences of one construction as opposed to another, as appears from the seminal decision of the United States Supreme Court in Plummer v Coler, 178 US 115, 138; 20 S Ct 829; 44 L Ed 998 (1900), where an underlying policy is stated: It is often impracticable to secure from living persons their fair share of contribution to maintain the administration of the State, and such [inheritance tax] laws seem intended to enable to secure payment from the estate of the citizen when his final account is settled with the State. Nor can it be readily supposed that such obligations can be evaded or defeated by the particular form in which the property of the decedent was invested. [Emphasis added.] Were the United States Supreme Court to have held that United States government securities were exempt from estate and inheritance taxation, persons whose wealth is in liquid form — cash, checking, or savings accounts, or marketable securities — could, in anticipation of death, have invested the bulk of their fortunes in tax-exempt United States government securities and thereby avoided all estate and inheritance taxation of wealth in that form. The Court undoubtedly cor — 557 — rectly assessed the matter in concluding that the Congress did not intend such a result when it exempted United States government securities from taxation. The policy concern identified in Plummer does not obtain where lottery proceeds are involved. While a lottery winner expends money in purchasing lottery tickets, there is no "investment” or transfer of wealth, in the sense referred to in Plummer, in purchasing a lottery ticket, and no need, by judicial construction, to guard against avoidance, beyond the policy of the statute, of estate and inheritance tax. I acknowledge that United States Trust Co v Helvering, 307 US 57; 59 S Ct 692; 83 L Ed 1104 (1939), cannot be explained on the policy basis suggested. There the exemption was of life insurance proceeds, apparently payable ex gratia, by the United States to veterans of World War I. The Court observed that the rule distinguishing between a direct and indirect tax, and the excise distinction, had been well established, before enactment of the legislation providing the life insurance benefit, since 1900 when Plummer was decided.8 hi This Court has not heretofore considered the question dealt with in Plummer. There is no decision of this Court holding that a legislative exemption from taxation applies only to direct taxes, or that an indirect or excise tax on the right or privilege of transferring or receiving property is — 558 — not included within an exemption from taxation.9 There not having been a ruling by this Court establishing the law in Michigan, the department’s eleven-year practice of exempting lottery proceeds from inheritance tax on the basis of a ruling by the Attorney General takes on, in our opinion, decisive significance. A The letter, dated October 5, 1977, advising of the first, contemporaneous construction of the lottery tax exemption from taxation, stated: The Attorney General’s Department, Revenue and Collections Division, Mr. Richard R. Roesch Assistant in Charge, has ruled that lottery winnings are not subject to any Michigan tax which, — 559 — of course, includes inheritance tax. [Emphasis added.][10] In 1983, the department announced that it would no longer adhere to that ruling. 11 B This Court has held that "the construction placed upon a statute by the agency legislatively chosen to administer it is entitled to great weight.” Davis v River Rouge Bd of Ed, 406 Mich 486, 490; 280 NW2d 453 (1979). A leading treatise on statutory construction states: Interpretations and application of regulations by officers, administrative agencies, departmental heads and others officially charged with the duty of administering and enforcing a statute have great weight in determining the operation of a statute. The greatest weight attaches to an admin — 560 — istrative interpretation in favor of parties who have reasonably relied upon it. [2A Sands, Sutherland Statutory Construction (4th ed), §49.05, p 362. Emphasis added.] One of the soundest reasons sustaining contemporaneous interpretations of long standing is the fact that the public has relied on the interpretation. . . . While the principle here is not strictly that of estoppel running against the government there is some analogy to that principle when the interpretation has been made by a government agency or officer. [Id., § 49.07, p 394. Emphasis added.] The United States Court of Appeals for the Third Circuit said: Deference to the Attorney General’s interpretation of the [Kentucky Consumer Protection] Act is particularly appropriate here because the interpretation is adverse to his best interests in this litigation. [In re Glenn W Turner Enterprises Litigation, 521 F2d 775, 779 (CA 3, 1975). Emphasis added.] In holding that promissory notes were not debentures within the meaning of a statute that imposed a stamp tax on "all bonds debentures, or certificates of indebtedness issued by any corporation,” the United States Supreme Court said: Against the Treasury’s prior longstanding and consistent administrative interpretation its more recent ad hoc contention as to how the statute should be construed cannot stand. [United States v Leslie Salt Co, 350 US 383, 396; 76 S Ct 416; 100 L Ed 441 (1956).12 Emphasis added.]_ — 561 — The United States Court of Appeals for the Second Circuit in Jandorf’s Estate v Comm’r of Internal Revenue, 171 F2d 464 (CA 2, 1948), declined to apply the direct/excise/privilege/transfer tax distinction for, among other reasons, the department’s longstanding policy of construing the statute at issue in that case13 as granting an estate tax exemption for United States government bonds owned by nonresident aliens.14 Both the instant case and Jandorf’s Estate may be contrasted with United States v Wells Fargo Bank, 485 US 351, 353; 108 S Ct 1179; 99 L Ed 2d 368 (1988), a case cited by the department in support of the direct/excise/privilege/transfer tax distinction. The Court there noted that [f]or almost 50 years after the Act’s passage, it was generally assumed that this [the provision of the Housing Act of 1937 exempting project notes from all taxation imposed by the United States] exempted the Notes from federal income tax, but not from federal estate tax. The unbroken assumption regarding the construction of the exemption in Wells Fargo Bank was — 562 — thus the opposite of that operating in Jandorf’s Estate and in the instant case. c For over a decade, the department construed § 34 of the Lottery Act as exempting state lottery prize proceeds from inheritance taxation. Persons who bought lottery tickets during the regime when the department and field examiners were administering the inheritance tax law as exempting lottery proceeds from inheritance tax should be accorded the benefit of the first, contemporaneous construction of the law: It has been held that an administrative agency having interpretive authority may reverse its interpretation of a statute, but that its new interpretation applies only prospectively. [Sands, supra, § 49.05, p 365.] D A state lottery winner’s right to a lottery prize is governed by principles of contract law.15 In that context, it has been said: The practical interpretation of the contract by one party, evidenced by his words or acts, can be used against him on behalf of the other party, even though that other party had no knowledge of those words or acts when they occurred and did not concur in them. [3 Corbin, Contracts, § 558, p 256.] E Persons who buy tax-exempt bonds may be more — 563 — likely to consult lawyers and accountants familiar with the esoteric distinction enunciated in Plummer than purchasers of state lottery tickets, who are not likely to become aware of a distinction between direct and indirect taxation, and income, privilege, transfer, and excise taxes: The words of the statute are to be taken in the sense in which they will be understood by that public in which they are to take effect. [United States v Isham, 84 US (17 Wall) 496, 504; 21 L Ed 728 (1873).] It is unlikely that Rose D’Amico’s heirs would perceive a meaningful distinction between being required to pay $13,754 as income tax,16 from which they are concededly exempt, and paying $13,527.70 as inheritance tax. The proceeds of the lottery prize that they receive and may retain free of tax will have been reduced by $13,527.70 whether called an income, an excise, a privilege, a transfer, or an inheritance tax. IV In sum, the Lottery Act provides that no state tax "of any kind whatsoever” shall be imposed on the proceeds of a state lottery prize. The inheritance tax is, in terms, a tax, and it cannot seriously be suggested that it is not a tax.17 It is a tax even if it is an excise tax, an indirect tax, a — 564 — transfer tax, a privilege tax, and not simply, as the Legislature called it, an inheritance tax. This tax is measured by the present value, at the time of death, of the unpaid "proceeds” of the lottery prize. The first, contemporaneous construction by the state that the inheritance tax is a tax within the meaning of § 34 of the Lottery Act was, for reasons earlier stated, an entirely plausible and defensible construction. The Department of Treasury should be held to be bound by the first, contemporaneous construction by the state, at least with regard to the estates of persons who purchased lottery tickets before September 14, 1983, when the department advised inheritance tax field examiners of a "new development.”18 We reverse the decision of the Court of Appeals. Brickley, Cavanagh, and Archer, JJ., concurred with Levin, J. Footnotes [1] Section 1 provides: A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of $100.00 or over, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations, not exempt by law in this state from taxation on real or personal property .... [MCL 205.201 et seq.; MSA 7.561 et seq., 1899 PA 188, as amended. Emphasis added.] [2] Section 34 of the Lottery Act (1972 PA 239, MCL 432.1 et seq.; MSA 18.969[1] et seq.) provided: No state or local taxes of any kind whatsoever shall be imposed upon the proceeds from a prize awarded by the state lottery. [MCL 432.34; MSA 18.969(34).] [3] The probate judge said: "This court, however, feels that the clear meaning of the State Lottery Statute should be carried out and that states quite clearly that there should be no tax assessed against lottery winnings.” [4] The Court of Appeals said: We find no conflict between those statutes clearly indicating that state or local taxes shall not be imposed on lottery proceeds and those statutes clearly indicating that an inheritance tax shall be imposed upon the transfer of any property. Because the Michigan inheritance tax is not a tax on the property itself, but is instead a tax on the transfer of property, measured by the value of the property so transferred, the inheritance tax may be validly imposed upon the transfer of such property and not violate the provision that lottery proceeds be exempt from taxation. [In re Fish Estate, 219 Mich 369, 373; 189 NW 177 (1922)]; MCL 205.201; MSA 7.561. . . . Therefore, we hold that the right to receive such winnings, as intangible personal property payable to decedent’s estate, became a taxable privilege subject to the state’s inclusion as a measure for imposing inheritance tax upon transfer from decedent to her beneficiaries. [In re D’Amico Estate, 171 Mich App 296, 302-303; 429 NW2d 659 (1988). Emphasis in original.] [5] See Plummer v Coler, 178 US 115, 138; 20 S Ct 829; 44 L Ed 998 (1900), Murdock v Ward, 178 US 139; 20 S Ct 775; 44 L Ed 1009 (1900), and United States Trust Co v Helvering, 307 US 57; 59 S Ct 692; 83 L Ed 1104 (1939). [6] See anno: Statutory provision that speciñed fund or property shall be "exempt from taxation,” "exempt from any tax,” or the like, as exempting such property from estate or succession taxes, 47 ALR2d 999, § 3, p 1003. This Court observed in In re Fish Estate, n 4 supra, p 373, relied on in the dissenting opinion: — 555 — The weight of authority, however, is not always determined by the use of an adding machine. We not infrequently follow the minority in number of the holdings, and should do so where such holdings appeal to our judgment and convince us that the true rule has been arrived at by the minority in number. [7] The dissent cites Michigan Baptist Homes & Development Co v Ann Arbor, 396 Mich 660, 669-670; 242 NW2d 749 (1976), Ladies Literary Club v Grand Rapids, 409 Mich 748, 753; 298 NW2d 422 (1980), Detroit v Detroit Commercial College, 322 Mich 142, 148; 33 NW2d 737 (1948), St Joseph’s Church v Detroit, 189 Mich 408; 155 NW 588 (1915), Edison v Revenue Dep’t, 362 Mich 158, 162; 106 NW2d 802 (1961), Romeo Homes, Inc v Revenue Comm’r, 361 Mich 128, 137; 105 NW2d 186 (1960), In re Smith Estate, 343 Mich 291; 72 NW2d 287 (1955), and Town & Country Dodge, Inc v Treasury Dep’t, 420 Mich 226, 243; 362 NW2d 618 (1984). The constructional issue presented in the instant case, whether the inheritance tax is a "tax” "of any kind whatsoever,” is somewhat different from the constructional issues presented in the cited cases. In each of the cited cases there was clearly a debatable question concerning the meaning of the words chosen to express the exemption from taxation. Acknowledging that there is rarely if ever such clarity in expression as might justify the use of the "plain meaning” shibboleth, the words "taxes of any kind whatsoever” are at least, in terms, unambiguous. In Michigan Baptist Homes, the question was whether a licensed home for the aged was within an exemption from ad valorem property taxation for charitable or benevolent purposes. In Ladies Literary Club, the question was whether the club was exempt from ad valorem property taxation as an educational institution. In Detroit Commercial College, the question was whether the Detroit Commercial College was an educational institution within an exemption from ad valorem property taxation. In St Joseph’s Church, the question was whether vacant land adjoining a parsonage was "occupied as such” within the meaning of an exemption from ad valorem property taxation. — 556 — In Edison, the question was whether the construction of a highway was "industrial processing” within the meaning of a use tax exemption. In Romeo Homes, Inc, the question was whether prefabricated homes were within a use tax exemption for materials affixed and made a structural part of real estate. In Smith Estate, the question was whether the natural child of the adopted daughter of the decedent was a "lineal decedent” within the meaning of the inheritance tax law. In Town & Country Dodge, the question was whether monies returned to an automobile dealer as a portion of the finance charge was interest income within the meaning of the Single Business Tax Act. [8] Moreover, a Department of Treasury regulation restated the Plummer rationale. Treasury regulations have been regarded, for purposes of federal taxation, as having the force of law. See Hartley v Comm’r of Internal Revenue, 295 US 216, 220; 55 S Ct 756; 79 L Ed 1399 (1935). [9] The dissent states that "it cannot be said with a certainty 'beyond doubt or cavil’ that the Legislature also intended to preclude any tax 'upon the transfer’ at death of entitlement to a lottery prize. See In re Fish Estate, supra." Post, pp 570-571. In re Fish Estate does not, however, construe the words "upon the transfer of any property” in the inheritance tax statute. See n 1 for text of the statute. The question presented in In re Fish Estate was whether the amount paid to the federal government as an estate tax is deductible from the value of the decedent’s property at the time of decedent’s death in computing state inheritance tax. The only exemption referred to in In re Fish Estate is a $50,000 exemption from the federal estate tax. The statement in In re Fish Estate, supra, pp 373-374, that the inheritance tax is not "a tax upon property,” and that the "right of transmission of property” and "to receive property” upon death "are not inherent rights, but are privileges which may be taxed by a privilege tax,” may be black letter law. D’Amico’s estate does not challenge the power of the state to impose a tax on the value of property or a privilege tax on the transfer or receipt of property. It claims rather that the Legislature, when it enacted that no tax "of any kind whatsoever” shall be imposed upon the proceeds of a state lottery prize, expressly chose not to exercise that power and not to impose the inheritance tax in respect to such proceeds. The statements in In re Fish Estate do not concern or address the question presented, whether the language of the Lottery Act, barring the imposition of "any tax whatsoever,” bars imposition of the inheritance tax in the instant case. No decision of this Court addresses or provides insight in respect to the resolution of that question. [10] The letter, addressed to the attorney for a decedent’s estate, is on the stationery of Stanley D. Steinborn, Deputy Attorney General, and was signed by E. Boomie Mikrut, Assistant Attorney General, with a copy to Francis Gould, Inheritance Tax Division. [11] On September 14, 1983, the department issued the following communication from Gould (see n 10) to "All Inheritance Tax Auditors”: A new development has occurred in the transferring of lottery receivables from a decedent to another. Previously we bad indicated we would consider all lottery winnings as exempt from taxation. Lottery winnings are still exempt in some cases, however, an individual who has received a lottery prize and has a receivable for the payment of funds over a number of years, has an asset. On death, the transfer of property is not the transfer of a lottery winning but a transfer of an account receivable to a beneficiary. This will be taxable. We have had a court case in Macomb County upholding this position and our Attorney General has informed me that it is a proper position. In the future, tax all transfers of accounts receivable from lottery winnings the same as any other transfer of property. [Emphasis added.] [12] The court also noted that the department’s original interpretation had express and implied congressional acquiescence and that it was in accord with the generally understood meaning of the term "debentures.” Leslie Salt Co, supra, pp 396-397. [13] The statute at issue in that case (§ 4 of the Victory Liberty Loan Act of March 3, 1919, 40 Stat 1311) exempted United States government bonds owned by nonresident aliens from taxation at national, state, and local levels. [14] In response to cases cited in support of drawing a distinction between a direct tax on property and an estate tax, the court said: Those cases support the proposition that a provision exempting United States bonds from taxation as to principal and interest, without more, relates exclusively to direct taxation of them as property. The cited cases would be persuasive, if Congress had not shown an intent to use the phrase "exempt . . . from all taxation” to include estate taxes by expressly excepting them in one section of the statute and not in the other, and if the Treasury Department had not for 20 years construed the statute as granting exemption with respect to the estate tax. [Jandorf’s Estate, supra, p 467. First emphasis in original, second emphasis added.] [15] Paulsen v State Lottery Bureau, 167 Mich App 328, 334: 421 NW2d 678 (1988). [16] The additional inheritance tax sought to be imposed on the D’Amico heirs is $13,527.70. The present value, at the time of Rose D’Amico’s death, of the right to receive the fourteen unpaid installments was, as determined by the department, $299,000. That amount multiplied by the state income tax rate of 4.6 percent is $13,754. [17] See post, p 568, n 3. The Legislature did not, however, enact a law escheating all or some part of a decedent’s property, but, rather, an inheritance tax. [18] See n 11.