Helvering v. Therrell, 303 U.S. 218 (1938)

HELVERING, COMMISSIONER OF INTERNAL REVENUE, v. THERRELL.*

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 128. Argued December 17, 1937.—Decided February 28, 1938.

The compensation received (1) by a liquidator appointed by the State Comptroller to wind up insolvent banks pursuant to Florida statutes; (2) by legal counsel employed by the Insurance Department of New York for services in liquidating insolvent Insurance companies taken over by the state Superintendent of Insurance, pursuant to New York statutes; (3) by an attorney in the Department of Justice of Pennsylvania assigned by the Attorney General for legal work relating to winding up of insolvent banks taken over by the state Secretary of Banking pursuant to Pennsylvania statutes. Held (p. 222) subject to income taxation by the Fédéral Government, it appearing:

1. That the compensation in each instance was paid from the assets of the liquidating corporation, not from funds belonging to the State;

2. That no one of the taxpayers was an officer of the State in the strict sense of that term;

3. That the businesses about which they were employed were not utilized by the States in the discharge of their essential govemmental duties;

4. That the corporations were private enterprises, and their funds private property.

88 F. (2d) 869, and Id. 873, reversed.

89 id. 699, affirmed.

92 id. 150, reversed.

*Together with No. 129, Helvering, Commissioner of Internai Revenue, v. Tunnicliffe, on certiorari to the Circuit Court of Appeals for the Fifth Circuit; No. 287, McLoughlin v. Commissioner of Internai Revenue, on certiorari to the Circuit Court of Appeals for the Second Circuit; and No. 597, Helvering, Commissioner of Internai Revenue, v. Freedman, on certiorari to the Circuit Court of Appeals for the Third Circuit.

Certiorari to review decisions of Circuit Courts of Appeals in four cases on appeals from decisions of the Board of Tax Appeals sustaining income tax assessments. In Nos. 128, 129 and 597 (34 B. T. A. 956) the Board’s ruling was reversed by the lower court; in No. 287, the Board’s ruling, 34 B. T. A. 963, was affirmed.

Solicitor General Reed, with whom Assistant Attorney General Morris, and Messrs. Sewall Key, Berryman Green, and Warner W. Gardner were on the briefs, for the Commissioner.

Mr. Harry M. Voorhis for respondent in Nos. 128 and 129. Mr. H. M. Hampton was on the brief with Mr. Voorhis in No. 129.

Mr. Bernhard Knollenberg, with whom Messrs. Jesse Hoyt and Alfred C. Bennett were on the brief, for respondent in No. 287.

Mr. John W. Townsend for respondent in No. 597.

By leave of Court, briefs of amici curiae were filed by Messrs. John J. Bennett, Jr., Attorney General, Henry Epstein, Solicitor General, John F. X. McGohey, Colin McLennan, and John C. Crary, Assistant Attorneys General, of New York, on behalf of that State, in support of petitioner in No. 287; and by Mr. Herbert Pope, on behalf of Charles C. Stilwell, in support of the respondent in No. 597.

Mr . Justi ce Mc Reynolds delivered the opinion of the Court.

The opinions below state the essential facts—not in dispute; make adéquate references to the relevant statutory provisions; and cite numerous authorities.

No. 128.

Under Florida statutes when a bank becomes insolvent “The State Comptroller may appoint a liquidator [subject to dismissal] to take charge of the assets and affairs of such bank . . . [who,] under the direction and supervision of the Comptroller, shall take possession of the books and records and assets of every description . . . and in his name shall sue for and collect ail debts and claims belonging to it, and upon the order of the court of competent jurisdiction may sell or compound ail bad or doubtful debts and on like order may sell ail real and Personal property . . . and sue for and enforce the individual liability of the stockholders.” He shall “pay ail money received by him to the State Treasurer to be held as a spécial deposit . . . shall make quarterly reports, or when called upon, to the Comptroller.” The appointment must follow notice and be confirmed by the Circuit Court. Liquidation expenses are payable out of the corporate funds held by the Treasurer. “The compensation of the liquidator shall be fixed by the Comptroller and shall be based upon the amount of work actually and necessarily performed, and shall in no case exceed five per cent of the cash collected.”

No. 129.

Respondent Tunnicliffe, liquidator of insolvent banks appointed by the Comptroller of Florida, was assessed for fédéral income taxes upon the sums received for services during 1931 and 1932. The Board of Tax Appeals approved; the Circuit Court of Appeals ruled otherwise upon its opinion in No. 128. Tunnicliffe v. Commissioner of Internai Revenue, 88 F. (2d) 873. Both causes présent the same points.

No. 287.

Petitioner McLoughlin was employed by the Insurance Department of New York as legal counsel in the Liquidation Bureau and received for services during 1932, $5,125.00. This bureau is in charge of a Deputy Superintendent of Insurance a civil service employé whose salary is paid by the State. It employs many persons—superintendents, attorneys, bookkeepers, stenographers, adjusters, accountants, etc.

Under the statutes the Superintendent may apply to the court for an order to take over the assets of an insolvent Insurance company and liquidate its affairs. When this issues the corporate charter is dissolved and the Superintendent must proceed to collect assets, adjust claims, etc. He determined petitioner’s compensation and caused it to be paid from assets of the several companies in liquidation according to the time devoted to each.

The Commissioner assessed this compensation for fédéral income tax; the Board of Tax Appeals approved. The Circuit Court of Appeals affirmed, and definitely held it was not exempted by the Fédéral Constitution. McLoughlin v. Commissioner of Internai Revenue, 89 F. (2d) 699.

No. 597.

During 1932 the respondent was assigned for legal work relating to closed banks and was paid by the Secretary of Banking out of their funds. The Commissioner assessed the sum so received for fédéral income tax. The Board of Tax Appeals approved; the Circuit Court of Appeals declared the salary exempt. Freedman v. Commissioner of Internai Revenue, 92 F. (2d) 150.

What limitations does the Fédéral Constitution impose upon the United States in respect of taxing instrumentalities and agencies employed by a State and, conversely, how far does it inhibit the States from taxing instrumentalities and agencies utilized by the United States, are questions often considered here. McCulloch v. Maryland (1819), 4 Wheat. 316; Weston v. Charleston (1829), 2 Pet. 449; Dobbins v. Commissioners of Erie County, 16 Pet. 435; Lane County N. Oregon, 7 Wall. 71; Veazie Bank v. Fenno, 8 Wall. 533, 556; South Carolina v. United States, 199 U. S. 437, 457; Metcalf & Eddy v. Mitchell, 269 U. S. 514; Indian Motocycle Co. v. United States, 283 U. S. 570; Burnet v. Jergins Trust, 288 U. S. 508, 516; Ohio v. Helvering, 292 U. S. 360, 368; Hélvering v. Powers, 293 U. S. 214; Rogers v. Graves, 299 U. S. 401; Brush v. Commissioner, 300 U. S. 352.

The Constitution contemplâtes a national government free to use its delegated powers; also state governments capable of exercising their essential reserved powers; both operate within the same territorial limits; consequently the Constitution itself, either by word or necessary inference, makes adéquate provision for preventing conflict between them.

Among the inferences which dérivé necessarily from the Constitution are these: No State may tax appropriate means which the United States may employ for exercising their delegated powers; the United States may not tax instrumentalities which a State may employ in the discharge of her essential governmental duties—that is those duties which the framers intended each member of the Union would assume in order adequately to function under the form of government guaranteed by the Constitution.

By définition precisely to delimit “delegated powers” or “essential governmental duties” is not possible. Controversies involving these terms must be decided as they arise, upon considération of ail the relevant circumstances. Notwithstanding discordant views which hâve sometimes arisen because of varying emphasis given to one or another of such circumstances, it is now settled doctrine that the inferred exemption from fédéral taxation does not extend to every instrumentality which a State may see fit to employ. Exemption dépends upon the nature of the undertaking; it is cabined by the reason which underlies the inference.

South Carolina v. United States, supra, gave occasion for much considération of the Fédéral Government’s power to tax instrumentalities utilized by a State. It ruled, against a stout dissent, that although South Carolina had the right to control the sale of liquors through the dispensary System, nevertheless Congress could tax the dispensers who acted as agents of the State in making sales. “Looking, therefore, at the Constitution in the light of the conditions surrounding at the time of its adoption, it is obvious that the framers in grantiug full power over license taxes to the National Government meant that that power should be complété, and never thought that the States by extending their functions could practically destroy it.”

Burnet v. Jergins Trust, supra, upheld a fédéral tax upon the receipts by the lessee of oil lands which belonged to the City of Long Beach, California. “The subject of the tax is so remote from any governmental function as to render the effect of the exaction inconsiderable as respects the activities of the city.”

In Ohio v. Helvering, supra, we held that the agencies and operations of the State of Ohio in the conduct of its Department of Liquor Control were subject to excise taxes prescribed by Congress. “Whenever a State engages in a business of a private nature it exercises non-go vernmental functions and the business, though conducted by the State, is not immune from the exercise of the power of taxation which the Constitution vests in the Congress.”

Helvering v. Powers, supra, ruled that the compensation of members of the Board of Trustées of the Boston Elevated Railway Company was subject to the fédéral income tax notwithstanding they were appointed by the

Governor of the State, confirmée! by the Council, and endowed with large powers to regulate and fix fares, etc. “The fact that the State has power to undertake such enterprises, and that they are undertaken for what the State conceives to be the public benefit, does not establish immunity.”

The cases last referred to strikingly illustrate the outcome of efforts here to apply the recognized doctrine in respect of taxing State agencies. According to them and others of like nature due weight, we are unable to conclude that the Commissioner erred in making any one of the assèssments involved in the four cases presently before us. He gave proper application to the rule which we must recognize as established. The compensation of the taxpayers was paid from corporate assets—not from funds belonging to the State. No one of them was an officer of the State in the strict sense of that term. The business about which they were employed was not one utilized by the State in the discharge of her essential governmental duties. The corporations in liquidation were private enterprises; their funds were the property of private individuals.

It follows that the judgments in Nos. 128, 129 and 597 must be reversed; the judgment in No. 287 must be affirmed.

Mr . Justi ce Cardozo and Mr . Justic e Reed took no part in the considération or decision of this case.