Nemaha County Bank v. County Board of Equalization & Assessment

Cornish, J. The inquiry is whether, in the assessment of the shares of stock in a banking corporation, there should be deducted from the total valuation of the shares the real estate mortgage securities, forming part of the bank’s assets. The bank, plaintiff and appellant, might say that the question would be more fairly put as follows; Should such assets be considered at all by the assessor in assessing the value of the shares of stock to the owners thereof1? In view of the constitutional provision that all property must be taxed in proportion to value, it is difficult to say that any of the property of the bank shall not be “considered at all.” If considered in arriving at the value of shares, then, as a matter of simple arithemetic, it must be either included in or deducted from that total valuation of the bank’s assets, which, divided by the number of shares, constitutes the value of each share. — 54 — Section 6343, Rev. St. 1913, as amended in chapter IOS, laws 1915, prescribes the method of taxing banks. The assessor is required to determine “the true value of each share of stock,” assessing it “as similar property belonging to other corporations and individuals” is assessed, taking into account its market value. The names of the owners of the stock should be shown. The bank is required to pay the taxes, having a lien upon the stock for the same. The section also contains a provision as follows: “Whenever any such bank, association or company shall have acquired real estate which is assessed separately, the assessed value of such real estate shall be deducted from the valuation of the capital stock of the association or company. Provided, mortgages, trust deeds and all other liens or interests in real estate less than a fee title and held as security for loans shall not be considered or assessed as part of the capital stock for purposes of taxation, and shall not be deducted from the capital, surplus or undivided profits.” The last sentence of this quotation constituted the amendment of 1915. Sections 6349-6353, Rev. St. 1913, enacted ■ in 1911, provide for the taxation of real estate mortgages. They are declared to be an “interest in real estate for the purposes of assessment'and taxation.” Rev. St. 1913, sec. 6350. If the mortgagor agrees to pay the tax on the amount of the mortgage interest, then the mortgagee is not taxed thereon; otherwise, he is. In the instant case, the mortgages in controversy, held by the bank, contained provisions that the mortgagor should pay the tax. Under the statute as it was from 1911 to 1915, we held that, mortgage securities being declared real estate, the assessor, in arriving at the true value of the shares of stock, should deduct from the total valuation of the (shares of) capital stock the amount of such securities held by the bank. First Trust Co. v. Lancaster County, 93 Neb. 792, 795. Following this deci — 55 — sion the amendment above noted was passed in 1915. We are called npon to construe the meaning of this amendment. The federal national hank act, while not bearing directly upon the issue, is instructive in the matter of interpretation. Under the federal decisions, national hanks are regarded as agencies of the government, impossible to be taxed by the states except as taxation is permitted by the federal law. State v. Fleming, 70 Neb. 529, 536; 3 U. S. S. A. 900; 6 Fed. St. Ann. 796, sec. 5219, and cases, cited. The federal law permits taxation of the shares of stock to the stockholder, to be paid by the bank, and taxation of real estate owned by the bank to the bank itself. Taxation of the assets or capital stock of the bank to the bank is not permitted except in the case of real estate. For that reason an attempt by the state to tax mortgage securities to a national bank, if the federal courts would consider them as personal property, not real estate (as they probably would), would be contrary to the federal law. The states, wishing their local banking institutions to be upon as favorable a footing as national banks, have uniformly followed the federal law. In this state however, unlike other states we have never, in a strict sense, taxed real estate to the bank, as we might have done. When we have taxed real estate belonging to the bank, we have considered it as part of the value of the (shares of) capital stock otherwise assessed, and, accordingly, have deducted -it from the total valuation of the shares in accordance with the direct provision of our statute above quoted. _ In the absence of laws, state or federal, forbidding it, there is no reason in the law why the entire capital stock of the corporation, consisting of its cash, personalty or realty, may not be taxed to the bank, in addition to a tax on the shares to the owner. Shares of stock and capital stock represent different property rights and may be separately assessed. Shares of — 56 — stock represent a liability of the bank. The words “capital stock” in the statute mean shares of stock which are the unit of taxation. The context shows it, and such must have been the meaning, because, under the federal law, a tax on what is technically capital stock is not permitted. Consistent with the law and our decisions, assessors heretofore, in assessing shares, have considered all the assets of the bank, “including all property and assets of every description.” First Trust Co. v. Lancaster County, supra. How else could he do it under the Constitution and his oath to assess at the true value? If among the assets was included real estate to be assessed separately, he considered it as part of the shares of stock and deducted it from the total valuation. If not included, then how could it be deducted? When, as in City Trust Co. v. Douglas County, 101 Neb. 792, mortgages were taxed to the bank as real estate in another county, we held that the deduction must be made; otherwise, the shareholders would be taxed twice on the same property, thereby clearly holding that the mortgages had been considered and assessed as part of the shares of capital stock. It may be urged that there is something fictitious in calling what is left after the deduction the true value of the stock. That is true, unless we consider the values deducted as part of the stock. So considered, no oath is broken and the stock is truly assessed. And now comes, the amendment of 1915, saying that such securities shall no longer “be considered or assessed as part of the capital stock for purposes of taxation,” and then, to make it emphatic, adding the words, “and shall not be deducted from the capital, surplus or undivided profits.” This means that these securities shall not be separately assessed as part of the capital stock, and hence no occasion for deduction arises. The intent is to forbid assessing them as real estate of the bank. When, howeyer, they were so as — 57 — sessed as in City Trust Co. v. Douglas County, supra, and the bank was made to pay the tax, the deduction must he made for two reasons: First. As stated in the opinion, not to do so would he double taxation on the shares, or, rather, an overvaluation of the stock, contrary to the constitutional provision of taxation in proportion to value. Second. As applied to a national hank, it would violate the federal law in not permitting taxation on personalty or capital stock, as such. When, as in the instant case, no attempt is made to tax the bank or shareholders on the securities, no deduction should be made, and the action of the taxing authorities in Nemaha county should be upheld. If it is contended that, equitably considered, the owners of the shares are the owners and proprietors of the hank, and that not to make the deduction amoun fcs to double taxation, since the valuation of the shares includes the mortgages assessed to the mortgagor, it must he answered that, if this is double taxation, then such taxation is common. The two interests represent separate property rights and therefore each is taxable. This was always the rule until the mortgage tax law was enacted. It is the rule to-day, if the owner of a farm has given only a note for the remainder due upon it. A chattel mortgage is taxed against the holder and the mortgaged chattel against the owner. The farmer’s implement is taxed against him and what he owes on it is taxed against the implement, dealer. The owner of a bunch of fat hogs must pay taxes on their full value, even though he could show that the corn which fattened them was purchased from a neighbor, who had paid his taxes upon the corn. Objectionable double taxation occurs when the property assessed is overvalued. Banks have no good reason to complain. They deal in these securities voluntarily. This state has never attempted to tax the bank itself upon any of its property, not even its real estate. An individual cannot deduct his debts and liabilities from his assets — 58 — so as to be taxed on net worth alone, as these institutions may do. An individual cannot go into the banking business. A bank with $100,000 capital may halve $1,000,000 from its depositors, which it is permitted to use without paying taxes thereon. Under the contrary rule, a bank, by investing its capital in these securities, might do a business from year to year and never pay a cent of taxes to the state. This is not consistent with the spirit, nor, we think, with the letter of our Constitution. What we decide is that, in assessing shares of stock for taxation, everything that enters into' value must be included, unless it has been separately assessed. In so deciding, we say nothing as to how mortgage securities should be assessed for taxation. It is the shares of stock which are being assessed. The mortgage security, owned by the corporation, is one thing; the share of stock, owned by the individual, is another and distinct thing. The corporation’s right to resist taxation upon its mortgage securities, contrary to the mortgage tax statute, if it were attempted, is one thing; the right of an individual shareholder to resist taxation on his shares of stock, according to true value, is an altogether different thing. In legal contemplation, it is the shareholder and not the bank which is being taxed. We leave banks and individuals, as holders of mortgage securities, upon the same footing. It appears that among the mortgages which were sought to be deducted there were some, amounting in all to $12,700.88, upon which the bank was liable to pay the taxes in the county where the land lay. These fall under the rule announced in City Trust Co. v. Douglas County, supra, and hence the assessor should have deducted this amount from the value of the stock. The judgment of the district court is modified so as to require the reduction of the assessed yalue to the extent of $12,700.88, and is affirmed as thus modified. Affirmed as modified.'