COMMISSIONER OF CORPORATIONS AND TAXATION vs. WOBURN NATIONAL BANK (and a companion case between the same parties).

LUMMUS, J. These are petitions, concerning taxes assessed in the years 1924 and 1925 respectively, brought under G. L. (1921) c. 63, Sections 77, 78, as amended (now repealed

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by St. 1930, c. 416, Section 2), by a national banking association, asking the Supreme Judicial Court to adjudge those taxes (assessed under statutes then existing and paid under written protest) illegally exacted, to the end that the amount thereof might be repaid out of the treasury of the Commonwealth. On May 20, 1938, a single justice transfered the petitions under St. 1930, c. 416, Section 33, to the Appellate Tax Board created by St. 1937, c. 400, to take the place of the former Board are found in G. L. (Ter. Ed.) c. 58A, as amended. On November 22, 1939, the Appellate Tax Board abated the taxes on the ground that they were illegally exacted. On December 8, 1939, the respondent commissioner appealed to this court, as provided by G. L. (Ter. Ed.) c. 58A, Section 13, as last amended by St. 1939, c. 366, Section 1.

Without congressional permission a State has no right to impose a tax directly upon an instrumentality or agency of the United States such as a national bank. Owensboro National Bank v. Owensboro, 173 U.S. 664. First National Bank v. Adams, 258 U.S. 362. Penn Dairies, Inc. v. Milk Control Commission of Pennsylvania, 318 U.S. 261, 269. Maricopa County v. Valley National Bank, 318 U.S. 357. Mayo v. United States, 319 U.S. 441. But "a national bank is subject to state law unless that law interferes with the purposes of its creation, or destroys its efficiency, or is in conflict with some paramount federal law." Lewis v. Fidelity & Deposit Co. of Maryland, 292 U.S. 559, 566. First National Bank v. Commissioner of Corporations & Taxation, 279 Mass. 168, 172. Milk Control Board v. Gosselin's Dairy, Inc. 301 Mass. 174. Whether a State has a right to tax stockholders in national on their shares in the absence of Congressional prohibition (Flint v. Aldermen of Boston, 99 Mass. 141, 145), or, as more commonly said, has no such right in the absence of Congressional permission (Des Moines National Bank v. Fairweather, 263 U.S. 103, 106; Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239, 244; Union Bank & Trust Co. v. Phelps, 288 U.S. 181, 186. 187; Central National Bank v. Lynn, 259 Mass. 1, 13), is of merely academic interest, for Congress has long prohibited

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State taxation of national bank shares except under rigid restrictions which undoubtedly it had a constitutional right to impose. Bank of California v. Richardson, 248 U.S. 476, 483. First National Bank v. Hartford, 273 U.S. 548, 550. Union Bank & Trust Co. v. Phelps, 288 U.S. 181, 186, 187. Federal Land Bank v. Bismarck Lumber Co. 314 U.S. 95. As was said in First National Bank v. Anderson, 269 U.S. 341, 347, "National banks are not merely private moneyed institutions but agencies of the United States created under its laws to promote its fiscal policies; and hence the banks, their property and their shares cannot be taxed under state authority except as Congress consents and then only in conformity with the restrictions attached to its consent."

Soon after the national banking system was established by the Act of February 25, 1863, c. 58 (12 U.S. Sts. at Large, 665), [Note p507-1] which contained no provision for State taxation of shares (Van Allen v. Assessors, 3 Wall. 573, 582), Congress revised that act by the Act of June 3, 1864, c. 106, and by Section 41 of the revised act (13 U.S. Sts. at Large, 99, 112), the material part of which is reprinted in a footnote in 99 Mass. at 142, premitted certain State taxation of national bank shares. That section was amended by Act of February 10, 1868, c. 7 (15 U.S. Sts. at Large, 34), to make clear that the word "place" in that section meant "State," as had been decided in Austin v. Aldermen of Boston, 14 Allen 359. The text of the 1868 amendment appears in Providence Institution for Savings v. Boston, 101 Mass. 575, 581. Those two acts, with respect to Section 41, were combined in U.S. Rev. Sts. (1873) Section 5219, which read as follows: "Nothing herein shall prevent all the shares in any [national banking] assocation from being included in the valuation fo the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the State within the association is located; but the legislature of each State may determine and direct

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the manner and place of taxing all the shares of national banking associations located with the State, subject only to the two restrictions, that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State, and that the shares of any national banking association owned by nonresidents of any State shall be taxed in the city or town where the bank is located, and not elsewhere. Nothing herein shall be construed to exempt the real property of associations from either State, county, or municipal taxes, to the same extent, according to its value, as other real property is taxed." This section remained without amendment until 1923.

A summary of the decisions interpreting Section 5219, found in First National Bank v. Anderson, 269 U.S. 341, 347, 348, is quoted in a footnote. [Note p508-1] Under that section, a citizen of Massachusetts could not lawfully be taxed here upon his shares in a national bank located outside the Commonwealth. Flint v. Alderman of Boston, 99 Mass. 141. But

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a nonresident could be taxed in Boston upon his shares in a Boston national bank. Providence Institution for Savings v. Boston, 101 Mass. 575. See also Schuylkill Trust Co. v. Pennsylvania, 302 U.S. 506, 514, et seq. In Owensboro National Bank v. Owensboro, 173 U.S. 664, 669, in deciding that a State tax on the property, asserts or franchises of national banks was invalid, the Supreme Court said, "This section [5219], then, of the Revised Statutes is the measure of the power of a State to tax national banks, their property or their franchises. By its unambiguous provisions the power is confined to a taxation of the shares of stock in the names of the shareholders and to an assessment of the real estate of the bank. Any state tax therefore which is in excess of and not in conformity to these requirements is void."

Prior to 1873 a statute of his Commonwealth purported to imposed upon "every bank" a tax of one half of one par cent of the amount of its paid-in stock. Gen. Sts. (1860) c. 57, Sections 89, 90. Those sections, if applied to national banks, were plainly in conflict with the Federal statutes already mentioned, and were omitted from the Public Statutes of 1882 on the ground that they were superseded by St. 1873, c. 315. See Nichols, Taxation in Massachusetts (3d ed. 1938) 551 et seq.

In addtion, shares in banks as well as in other corporations were originally assessed to the owner in the city or town where he lived. Gen. Sts. (1860) c. 11, Section 12. Dwight v. Springfield Centre Fire District, 11 Met. 374. Tremont Bank v. Boston, 1 Cush. 142. Murray v. Berkshire Life Ins. Co. 104 Mass. 586. Goldsbury v. Warwick, 112 Mass. 384. Rich v. Packard National Bank, 138 Mass. 527, 530. The same practice was continued as to national bank shares by St. 1865, c. 242. [Note p509-1] The fact that the rate of taxation in different municipalities varied greatly was held not a violation

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of the Federal statute. [Note p510-1] Providence Institution for Savings v. Boston, 101 Mass. 575. But after some vacillation (St. 1871, c. 390; St. 1872, c. 321) the policy of taxing both State and national bank shares to their owners in the city or town in which the bank was located was adopted for all cases by St. 1873, c. 315, except that real estate was assessed to the bank wherever situated, and its value was deducted in reckoning the value of the shares. The rate of taxation was to be the same as that "at which other moneyed capital in the hands of citizens and subject to taxation is by law assessed." That rate was the general local rate of taxation. The bank was required to pay the taxes assessed upon its stockholders, as the statutory agent of the stockholders (A. J. Tower Co. v. Commonwealth, 223 Mass. 371, 373), and as such might petition for abatement or contest the validity of the taxes (National Bank of Commerce v. New Bedford, 155 Mass. 313, 316, 317; Hills v. Exchange Bank, 105 U.S. 319; Schuylkill Trust Co. v. Pennsylvania, 296 U.S. 113, 118), and was given a lien upon the shares for reimbursement. The imposition upon the bank of the duty to pay the taxes was held not to violate the Federal statute. Merchants' & Manufacturers' Bank v. Pennsylvania, 167 U.S. 461, 466. Des Moines National Bank v. Fairweather, 263 U.S. 103, 111, 112. Colorado National Bank v. Bedford, 310 U.S. 41, 52, 53. The benefit of the taxes was given to the several cities and towns in which the shares were owned by residents of the Commonwealth. All other local taxation of such shares was ended. Little v. Little, 131 Mass. 367.

In substance this system continued in force and was incorporated in G. L. (1921) c. 63, Sections 1-10. It was held constitutional and not in conflict with the Federal statute in Bank of Redemption v. Boston 125 U.S. 60. See also A. J.

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Tower Co. v. Commonwealth, 223 Mass. 371, 376; Des Moines National Bank v. Fairweather, 263 U.S. 103.

In the present century many States changed from a system of taxing locally intangibles owned by individuals by ad valorem property assessement, and adopted systems of taxes on the income from intangibles. For the history of this change in Massachusetts, see Nichols, Taxation in Massachusetts (3d ed. 1938) 223-226, 463, et seq. With the advent of State income taxes on individuals in Massachusetts, a new question was presented as to the conformity to Section 5219 of our system of taxes on national bank shares. Under Amendment 44 to our Constitution, ratified on November 2, 1915, an income tax was provided by St. 1916, c. 269, which in substance became G. L. (1921) c. 62. By that statute, interest upon bonds, notes, money at interest, and debts (except savings bank deposits, bonds of the United States, mortgage loans upon real estate, and some others), and dividends upon shares of corporations not organized under the laws of Massachusetts (except national banks and foreign corporations subject here to a franchise tax), received by individual inhabitants of Massachusetts, became taxable at six per cent. Personal property, the income of which was subjected to the income tax, was made exempt from local property taxes. [Note p511-1]

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Primarily Section 5219 protected shares in national banks from taxation that discriminated against them in favor of compating individuals who enjoyed more favorable rates of taxation. Merchants' National Bank v. Richmond, 256 U.S. 635. "The words of the federal statute `do not embrace any moneyed capital . . . except that in the hands of individual citizens. This excludes moneyed capital in the hands of corporations, although the business of some corporations may be such as to make the shares therein belonging to individuals moneyed capital in their hands.' Mercantile Bank v. New York, 121 U.S. 138, 156." A. J. Tower Co. v. Commonwealth, 223 Mass. 371, 375, 376. Shares in competing corporations, however, might be "other moneyed capital in the hands of individual citizens" within Section 5219. Amoskeag Savings Bank v. Purdy, 231 U.S. 373. Minnesota v. First Saving Bank, 273 U.S. 561. Montana National Bank v. Yellowstone County, 276 U.S. 499. Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239.

It was and is common knowledge that the ad valorem tax on $1,000 of fair cash value in national bank stock (disregarding real estate held by the bank and taxable locally where situated) under G. L. (1921) c. 63, Section 1, at the general local rate of taxation would generally much exceed in amount the tax under the income tax law of six per cent of the income of $1,000 otherwise invested. [Note p512-1] That being the case, if these was in fact "other moneyed capital in the hands of individual citizens" being used in competition with national banks, there was a likelihood that the taxation of national bank shares locally at the general local rate of taxation would be held unlawful as a violation of Section 5219. This was recognized by the then Attorney General in an opinion given to the House of Representatives on April 12,

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1923 (1923 House Doc. 1441). See also Central National Bank v. Lynn, 259 Mass. 1, 3, 10, 12. Much litigation arose over this question. The history of it is narrated in Nichols, Taxation in Massachusetts (3d ed. 1938) 557-560; Opinon of the Attorney General, ubi supra.

There was pressure upon Congress from Massachusetts and other States having income tax laws to liberalize Section 5219 so as to validate State legislation. By the Act of March 4, 1923, c. 267 (42 U.S. Sts. at Large, 1499), Section 5219 was amended into the form set out in a footnote. [Note p513-1] The amendment permitted two kinds of State taxation upon an owner of national bank shares, (a) a property tax on the shares, as allowed before lthe amendment, and (b) an income tax on dividends at a rate no higher than that assessed upon

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the net income of other moneyed capital. it also permitted one kind of tax upon the bank itself (People v. Loughman, 100 Fed [2d] 387), namely, a tax on the net income of the bank itself at a rate no higher than the tax on other corporations. It was provided that "the imposition by said State of any one of the above three forms of taxation shall be in lieu of the others."

After that amendment of Section 5219, the Legislature of Massachusetts enacted St. 1923, c. 487, and amended it by was amended slightly, in one place by expressing the rate of local taxation of bank shares as "the same rate as is assessed upon other moneyed capital in the hands of individual citizens coming into competition with the business of national banks." Originally the somewhat similar words of G. L. (1921) c. 63, Section 1, had meant the local rate of taxation, for other moneyed capital was assessed at that rate to individuals. Now, with the advent of incomes taxes on individuals, these words referred (apart from rates of taxation upon competing corporations, A J. Tower Co. v. Commonwealth, 223 Mass. 371) to income taxes on individuals using moneyed capital in competition with national banks. The ad valorem tax on national bank shares had to be compared with a wholly different kind of tax on individual income, in order that the "rate" of the latter might govern the former. The statute meant that the practical burden of each should be the same. The tax on national bank shares remained an ad valorem tax, and the question was, what amount of tax assessed upon such shares would imposed on their owners a burden equal to that of the income tax on competing individuals. Central National Bank v. Lynn, 259 Mass. 1, 11-13. The fact that an individual having no net income would be subject to no income tax did not prevent some taxation of national bank shares ad valorem. The amount of the tax under c. 63, Section 1, as amended in 1923, could be determined only by the ascertainment of complicated facts and the making of difficult comparisons. Much litigation could have been expected. But some tax on the shares of the petitioning bank was doubtless assessable to the stockholders,

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even though it had no net income for the year. Central National Bank v. Lynn, 259 Mass. 1, 11 et seq.; S. C. 266 Mass. 145.

Those Massachusetts statutes of 1923 and 1924, moreover, inserted a new section 10A in G. L. (1921) c. 63, whereby each national bank was given an annual election to be assessed and to pay a wholly different tax in lieu of the tax under c. 63, Section 1, as thus amended. A bank so electing was freed for the year from any tax under that section, c. 63, Section 1, as amended, and was taxed instead twelve and one half per cent of its net income for the year, but (under the amendment to said Section 10A inserted by the 1924 statute) in no event less than six per cent of the dividends paid to its stockholders during the year. Those statutes remained in force with respect to taxation for the years 1923, 1924, and 1925. St. 1925, c. 343, Sections 1, 13. St. 1926, c. 222. [Note p515-1]

In 1923 and 1924 the petitioning bank had no net income, but suffered a loss in each year. But in each year it paid substantial dividends to stockholsers out of accumulated surplus. In 1924 and 1925 it duly filed elections under Section 10A [Note p515-2] to be taxed under that section with reference to income or dividends of the preceding year. The respondent commissioner assessed upon it in each year a tax of six per cent of the dividends paid in the preceding year. The bank paid those taxes under written protest, and later brought these petitions.

It may be conceded that a tax on nonexistent income, with a minimum measured by dividends paid, was not within the permission given by Section 5219 as amended in 1923.

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Hoeper v. Tax Commission of Wisconsin, 284 U.S. 206, 215. Commissioner of Corporations & Taxation v. J. G. McCrory Co. 280 Mass. 273, 280. Such a tax was at best a mixture of two permitted forms of taxation, whereas the Federal statute gave a State choice of only one of three forms. Buder v. First National Bank, 16 Fed. (2d) 990.

But this alternative tax was optional with the bank, and was payable only at its election. The bank could have chosen instead to pay the tax, doubtful in amount, lawfully assessable under c. 63, Section 1, as amended. By electing the alternative tax, the bank gained certainty in place of uncertainty, settlement in place of a long and expensive controversy. In reliance upon that election, the public authorities made no attempt at local taxation of its shares. Although the tax elected was one upon the bank itself, that made little if any practical difference to the bank or its stockholders. The statute was in effect an offer of compromise of a troublesome controversy, and the bank elected to accept the offer. It is immaterial that the amount paid by the bank in compromise was called a tax, or that a tax of that sort, apart from a contract of compromise, would not have been collectible. Burr v. Wilcox, 13 Allen 269. The amount was paid voluntarily without any duress, upon valuable consideration furnished by the Commonwealth. It is not shown that the bank and its stockholders did not profit by the course it elected to take. There was nothing ultra vires in its election to compromise. A bank is not required by law to choose between submission to unlawful taxation, and carrying controversy to the end. It has a right sensibly to adopt a middle course, at it did in this case. The compromise made amounted to a contract between the Commonwealth and the bank, and is not to be set aside except upon some ground destroying its validity as a contract. Collector of Taxes of Boston v. National Shawmut Bank, 259 Mass. 14. See also Central Trust Co. v. Howard, 275 Mass. 153, 156; Clement National Bank v. Vermont, 231 U.S. 120.

The election in 1925 was made after a minimum tax provision had been inserted in Section 10A. That election, we hold,

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accepted that minimum tax provision. Therefore the petitioning bank cannot maintain its petition with reference to the tax assessed in 1925. In 1924 the petitioning bank filed its first election on March 11, 1924, before St. 1924, c. 233, inserting the minimum tax provision, took effect on April 12, 1924. At that time, as appears by a return filed within fifteen days thereafter, it had been determined that the bank had no net income for 1923, and consequently that no tax could be due under Section 10A as its existed before the amendment made on April 12, 1924, by St. 1924, c. 233. This the bank does not deny. Since there was then no tax assessable under said Section 10A as it existed prior to St. 1924, c. 233, because there was no net income, the election filed on March 11, 1924, created no contract binding the Commonwealth, because of lack of consideration furnished by the bank. The case in this respect is not governed by Collector of Taxes of Boston v. National Shawmut Bank, 259 Mass. 14, because in that case the bank apparently was taxable under Section 10A as its existed before the amendment of 1924. The later election filed by the bank in the present case on April 15, 1924, after a minimum tax had become assessable under Section 10A by the amendment made on April 12, 1924, by St. 1924, c. 233, created a valid contract binding both the bank and the Commonwealth by reason of consideration furnished by each party. In each case the entry will be.

Petition dismissed with costs.