Household Finance Corp. v. State Tax Commission

Prescott, J., delivered the opinion of the Court. This appeal involves the assessment of the value of the capital stock of a foreign finance corporation and the apportionment thereof, so as to allocate the portion that fairly “represents the business done in this State”, for the year 1953. Household Finance Corporation (Household) was, and is, such a corporation and appealed to the Circuit Court of Baltimore City from an assessment, and allotment (business within and without the State), of its capital stock made by the State Tax Commission (Commission). After consideration of the appeal, the Commission’s action was affirmed in the assessment made and partly so in the allocation, but was remanded, with directions, in regard to the remainder of the apportionment.

Thereupon, Household appealed to this Court from that part of the decree that affirmed the assessment and denied its contentions concerning the allocation, and the Commission cross-appealed as to the part that remanded, with directions, in regard to the remainder of the apportionment. Household is a Delaware corporation' having its principal ⁸⁵ offices at Chicago, Illinois, with regional headquarters in New York, Philadelphia, and Los Angeles, and as to its Canadian subsidiaries, in Toronto, Canada. The taxpayer is engaged in the business of making installment cash loans to consumers. At the end of 1952, it and its wholly owned subsidiaries were so engaged at 577 branch offices in 389 cities of 29 states and 10 Canadian provinces.

During 1952, taxpayer was so engaged at 13 branch offices in 6 cities in Maryland. Except for periodic examinations of these Maryland branch offices by administrative personnel, the administration of the affairs of the taxpayer and of its subsidiaries was outside the state of Maryland. Only branch office operations were conducted in Maryland. Each such office operated in rented quarters and maintained necessary office equipment and operating cash on hand and in bank.

Employees consisted of a manager, one or more assistant managers, and a number of steno-cashiers who handled office detail and outside representatives who made outside credit investigations and calls upon delinquent borrowers. The taxpayer owned all, or substantially all, of the capital stock of 10 subsidiary corporations, nine of whom carried on the same business as the parent company. The capital stock of the taxpayer was listed on the New York Stock Exchange. In its published annual reports, balance sheets and earnings statements, the subsidiaries, except one, were consolidated with the parent.

For the purposes of the figures cited to us, however, this one was consolidated with the others. None of the U. S. subsidiaries had ever paid any dividends, all profits having been placed back into the business. The only receipts, therefore, from the U. S. subsidiaries have been interest and supervision fees. The taxpayer received no interest or supervision fees from Peoples Industrial Bank, one of the subsidiaries, since that bank was not indebted to the taxpayer and the bank furnished its own administration.

The bank had paid no dividends. In addition to interest and supervision fees, the Canadian “subs”, however, had for several years paid dividends. Household’s consolidated balance sheet, as of the last day ⁸⁶ of 1952, showed assets in excess of $340,000,000; consolidated gross income for that year of approximately $75,000,000; and consolidated net income of over $13,000,000. Figures in the record, furnished by it, showed a book value of over $102,000,000; consolidated net earnings capitalized at 10% were over $136,000,000; and the average consolidated net earnings for the previous 5 years capitalized at the same percentage were over $114,000,000.

These facts have been set forth in some detail to show the taxpayer operated a very large and extensive business enterprise, with tremendous assets and widespread interests of great value, that seem to demonstrate with clarity and certainty, it was engaged in a unitary undertaking. Part of the value of the capital stock of this class of corporations is subject to taxation in Maryland. The Commission, as the administrative body in charge of fixing assessments, issues several reporting forms for the taxpayer to complete and return. Household completed Form No. 7 with attached schedules, and listed therein the market price of its stock on January 1, 1953.

The Commission incorporated this listing in their aggregate valuation, the details thereof will be shown when we quote from the “Statement of Facts Considered by the Commission on which its findings are Based”. Taxpayer also completed Form No. 8, in which this information was supplied: 1. Gross receipts or earnings from all sources during calendar year 1952 .... $ 61,812,951.26 2. Gross receipts or earnings derived from business done in Maryland during calendar year 1952?...................... $ 2,481,626.70 3.

Value of property (tangible and intangible) in Maryland? .............. $ 10,200,625.92 4. Value of property (tangible and intangible) outside of Maryland?........ $317,034,611.52 5. Income from permanent investments? .............. With these facts and figures, among many others, before it, the Commission proceeded to assessment.

The statutory direction for that type of tax is first, to ascertain the valúa ⁸⁷ tion of the capital stock, and then to apportion such part as represents the business done in this State. We will deal with the action of the Commission in that order; but, before doing so, will set forth the laws relating thereto. The statutory provisions pertinent to the assessment herein are contained in Article 81 of the Annotated Code of Maryland (1951). Sec. 13 (it being Ch. 34, sec. 2, Laws of Maryland, 1952, at the time of the tax herein) required property to be assessed “at the full cash value thereof on the date of finality”.

Sec. 12 (b) provided for the assessment and taxation of as much of the capital stock of foreign finance corporations “as represents the business done in this State”. Sec. 20 (b) required the assessment of the stock of foreign finance corporations doing business in Maryland to be computed in the same manner as domestic finance corporations, the intention being the foreign one shall be assessed on its own account in the same amount as it would have been assessed, on account of its shareholders, if it were a domestic one. Sec. 20 (a) set forth the method of assessing the value of shares of stock in domestic finance corporations (because of sec. 20 (b) above, it also became the method for foreign ones). It directed the Commission to proceed in the same manner prescribed in sec. 19, except (1) that the property and business outside of this State shall be excluded, to the end and intent that so much only of the value of the shares as represented business done in Maryland was to be taxed, and (2) that in apportioning the value of the shares between the business within and without M'aryland, it was to be presumed, in the absence of clear evidence to the contrary, that the value of the property and business within Maryland bore to the value of the total business and property, the same ratio that gross receipts or earnings in Maryland (exclusive of income from permanent investments) bore to the total gross receipts or earnings (with the same exclusion).

This section made taxes assessed thereunder subject to sec. 19 (e) which stated they shall be taxed to the owners thereof, but may be collected from the corporation. Sec. 19 (a) (because of sec. 20 (a) above, applied to the assessment herein) provided, in part, the Commission shall first ascertain the total aggregate value ⁸⁸ of the capital stock by considering: (1) the market value, if any, thereof without reference to abnormal prices, rendering market quotations not a fair index of actual value of stock as a whole; (2) the net earnings or income; and (3) the net value of its assets. Sec. 255 (b) permitted appeals to the Circuit Courts, in equity. It then provided, if the Court found the action of the Commission was unlawful, unreasonable or against the substantial weight of the evidence, it should remand the case to the Commission; otherwise, such action was to be affirmed.

It further provided for an appeal to the Court of Appeals. Sec. 1, of the 14th Amend. to the U. S. Constitution says: “* * * nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. In an appeal of this nature, the burden is upon the taxpayer to show error committed by the Commission. State Tax Comm. v. Brandt Cab.

Works, 202 Md. 533, 544 , 97 A. 2d 290 ; State Tax Comm. v. C. and P. Tel. Co., 193 Md. 222, 231 , 66 A. 2d 477 . And to like effect see Butler Bros. v. McColgan, 315 U. S. 501 , 86 L. Ed. 991 , and Norfolk and W. Ry. Co. v. N. C., 297 U. S. 682 , 80 L. Ed. 977 , wherein Justice Cardozo said: “We must bear in mind steadily that the burden is on the taxpayer to make oppression manifest by clear and cogent evidence.” Household disputes: (1) the method of assessment of the value of its capital stock as not complying with the requirement of sec. 19; and (2) the gross receipts fraction used as a formula for apportioning capital stock value within and without Maryland, in that it failed to exclude in sufficient amounts to satisfy the provisions of sec. 20 and the constitutional mandates as to due process, and equal protection, of the laws, capital stock value produced by the “property and business” of the taxpayer outside the state in respect to (a) its general administrative offices (called “headquarters”), and (b) its subsidiaries.

The learned Court below held with the Commission on (1) and (2) (a), but with Household on (b). The Commission maintains its action on (b) was neither ⁸⁹ unlawful, unreasonable nor against the substantial weight of the evidence. In the record is a “Statement of Facts Considered by the Commission on which its Findings were Based” that, in part, reads: “The aggregate valuation of the taxpayer’s capital stock was fixed by the Commission as follows: PREFERRED 100.000 shares 4.4% at 102^ $10,262,500 96,000 shares 4% at 99Y 9,540,000 100.000 shares 3¿4% at 90}4 9,050,000 COMMON 2,844,653 shares at 47.25 134,409,800 $163,262,300 this valuation being the market price on January 1, 1953, as reported by the corporation in answer to question No. 11 on the taxpayer’s report to the Commission. The stock of the corporation being listed on the New York Stock Exchange enabled the Commission to verify the correctness of the taxpayer’s market quotations. “In considering net earnings or income, the Commission was of the opinion that the same amply justified the very active market of the stock, that is to say, the 1952 net earnings, before dividends of $13,925,785 capitalized at 8.5% justified the valuation fixed by the investing public on all the corporation’s capital stock.

Considering the past five years’ average earnings, capitalized at 6.9% would likewise justify the investing public’s valuation of $163,262,300. “In considering net value of the assets, the Commission considered the capital of $63,377,468 and the surplus of $33,366,733, or a total book value of $96,744,201. Realizing this valuation does not take into account earning power and many other intangible assets which are fully evaluated by the investing pub- ⁹⁰ lie on an active market such as we have in this case, the Commission gave little or no weight to the net value of assets in fixing the aggregate valuation of the corporation’s capital stock.” Household says the Commission was in error in the assessment of the total value of its capital stock at $163,262,300 because it was based solely on the market price of its shares on the New York Stock Exchange on the last day of December, 1952, and in the fixing of that value the Commission failed actually and practically, “to consider” the “net earnings or income”, (sec. 19 (a)). It does not complain of the regard given “net value of its assets”, but argues sec. 19 (a) is a statutory directive to the Commission for an intelligent and realistic consideration of all the factors enumerated therein, that it failed to gratify. In other words, there is a difference between saying a matter has received consideration and in actually, intelligently and realistically regarding the same.

It asks this Court to reverse the valuation and direct the Commission as to how it shall consider earnings. We think this contention has been completely answered by two decisions of this court, State Tax Comm. v. C. and P. Tel. Co., supra; and Seaboard Comm. Corp. v. State Tax Comm., 181 Md. 234, 243, 244 , 29 A. 2d 294 .

In the Telephone Co. case the Commission was directed by statute to value each operating unit by “considering its earning capacity and all other factors relevant to a determination of its full cash value”. (Italics supplied). Here, as in the case at bar, the taxpayer complained the Commission had failed to give sufficient weight to net earnings. Judge Collins, for this Court, gave one of the meanings of the word “considering” as “reasonably regarding”, quoted from the Seaboard case as will be done below; stated the evidence showed the Commission “gave some real consideration to net earnings”; and upheld the assessment.

In the Seaboard case, as here, appellant was a foreign finance corporation, and claimed error in its assessment in that the Commission had disregarded two of the factors required to be considered by it, namely, market value and net earnings, and considered only book value. The Court held ⁹¹ the evidence failed to bear this out, and then gave the following interpretation of the statute that has acted as a guide to the Commission ever since: “We do not think it incumbent on the nisi prius court to investigate how far each factor required by the Legislature to be considered entered into the final determination of the assessment. It would clearly be error for the Commission not to consider all of these factors, but that does not mean that an average must be struck between them. The Commission is set up as a body of experts on taxation, and it is intended that its judgment in the absence of clear error should be final on the assessment it makes.

It may in one case hold that a combination of all three factors should be used to reach a fair assessment. It may in one case give the market value the chief weight. It may in another rely chiefly on the net earnings, and in another it may base its assessment on the net value of the assets. In each of the four suggested decisions, it may be entirely correct, although each is based upon a different point of view.

That is the purpose of the statute, to enable a body of men, selected to investigate such matters, to determine in each case what a fair assessment is, that is, an assessment fair both to the public and to the corporation. Had the Legislature intended that the market value should be the test, it would have said so, and similarly, had it intended any of the others to be the sole test. It clearly did not so intend. * * * It left the decision to the body it set up for the purpose of making it, with only one guide, the presumption set out in sec. 16 (a) already quoted. It appears in the case before us that the Commission did take into consideration all the factors required by it, did exercise its judgment in reaching the conclusion it did, and that while the appellant might prefer a different conclusion, the action of the Commission was not unlawful, unreasonable, or against the substantial weight of the evidence.” ⁹² See also Susquehanna Power Co. v. State Tax Comm., 159 Md. 334, 358 , 151 A. 29 .

It is true the assessment is above the book value, which is to be expected. Therein are not reflected the good will and many other value producing intangibles of a keenly managed, well operated, money making business. It cannot be argued seriously that if the physical assets of such corporations as Sears, Roebuck and Co. and The Great Atlantic and Pacific Tea Co., immediately, could be reproduced by other corporations, the value of the corporate stock of the latter would equal the former. We think the “Statement of Facts” and the record clearly show the Commission considered all three factors and exercised its judgment thereon; so, with respect to the assessment of the value of the capital stock of Household, we hold the action of the Commission was lawful, reasonable and supported by the evidence.

We proceed to Household’s next contention, that is, 2 (a) and (b). It maintains the record discloses headquarters property located without the State, of over $22,750,000 that consists of about $178,000 worth of office equipment and nearly the entire balance of cash on hand or in the bank. It claims thesitus was outside the territorial limits of Maryland, and both the statute, and constitutional provisions as to due process, and equal protection, of the laws, require capital stock value represented by such property be excluded from the tax base. It makes the same claim with reference to headquarters business showing salaries there amounted to $1,641,111 or 14.10% of total salaries.

It alleges as a matter of common knowledge this includes the development of over-all corporate policy, the acquisition of new capital to lend, the close supervision of the operating branches, the maintenance of accounting records, et cetera. It claims none of this property or business produced any gross receipts of consequence at the place where the property was located and the business performed; therefore, an apportionment formula consisting solely of gross receipts within Maryland and total gross receipts has the effect of failing to exclude from taxation in Maryland a proportionate part of the value of taxpayer’s capital stock rep ⁹³ resented by the property and business of headquarters outside the state. It is the same argument used in practically all the apportionment cases involving unitary enterprises. State taxation, based on a fair apportionment or allocation of business, property or income within and without the State, is constitutional.

Butler Bros. v. McColgan, supra; Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 , 65 L. Ed. 165 ; Ford Motor Co. v. Beauchamp, 308 U. S. 331 , 84 L. Ed. 304 . And the gross receipts formula has been in operation too long and upheld in the courts too frequently to be attacked as unfair or unreasonable per se or in the abstract. It likewise is true, an innocuous formula in the abstract and in general application, may prove harmful in particular instances. Fargo v. Hart, 193 U. S. 490 , 48 L. Ed. 761 ; Norfolk and W. Ry.

Co. v. N. C., supra. The “Statement of Facts”, referred to above, showed, that after completing the assessment of total value of capital stock, the Commission proceeded to apportion the same, as follows: Aggregate valuation, capital stock $163,262,300 Credit for business outside of Maryland $156,707,800 Net valuation of capital stock subject to taxation in Maryland $ 6,554,500 The Commission accepted Household’s figures on Form No. 8, above, and were of the opinion the value of the property and business in Maryland bore to the value of the total business and property the same ratio which the gross receipts or earnings in Maryland bore to the total gross receipts or earnings. This made a fraction as below: Gross receipts and earnings in Maryland $ 2,481,626 Total gross receipts and earnings $61,812,951 As changed into a decimal by the Commission, this amounted to .0401. It then applied this percentage to the aggregate value of the capital stock and determined the valuation of that taxable in Maryland, and reported an assessment of $6,544,500.

It will be noted there is a difference of $10,000 in the figures. ⁹⁴ This may seem somewhat unusual in the sequence, but it is the manner reported, and the results are the same if a different order of calculation had been made. Household seems to base its whole case under this heading on three cases and a hearing or case before the Minnesota Board of Tax Appeals, from whence it is difficult to see how they glean solace: Wallace v. Hines, 253 U. S. 66 , 64 L. Ed. 782 ; Hans Rees’ Sons v. N. C., 283 U. S. 123 , 75 L. Ed. 879 ; Com. v. Columbia Gas and Electric Corp., 336 Pa. 209 , 8 A. 2d 404 ; and Allied Building Credits, Inc. v. Comm. of Taxation (Minn. Bd. of Tax Appeals, Doc. No. 253, Oct. 29, 1947, CCH Minn.

Tax Reporter), Par. 18044. Wallace v. Hines is a prominent and important case. The state of North Dakota imposed a special excise tax for doing business within her borders equivalent to 50^ on each $1,000 of the “capital actually invested in the transaction of business in the State”, and where it was railroad property extending further than her boundaries the above would mean that proportion of railroad’s entire property as the mileage within the State compared with total mileage. The court pointed out: the only reason a State may consider property beyond her borders where taxing property of a foreign corporation is to arrive at a real value of things within it, “when they are a part of an organic system of wide extent, that gives them a value above what they otherwise would possess”; that North Dakota was a state of plains, where the cost of construction was much less than in other areas; that “the great and very valuable terminals” were in other states; and then, held in this case the tax was an unwarranted interference with interstate commerce and a taking of property without due process of law.

The Columbia Gas and Electric Corp. case has little analogy to the facts presented to us. Pennsylvania imposed a franchise tax at the rate of five mills upon a taxable value to be computed by dividing total capital stock value into three equal parts. Each part then was required to be multiplied by a fraction. In the first, the numerator was the value of tangible property within the State, and the denominator total tangible property; in the second, gross wages, salaries, et cetera, ⁹⁵ paid in the State as compared to total wages, et cetera; and, in the third, gross receipts within the State as compared to total gross receipts.

The corporation was a large one showing assets of some $446,000,000 and capital stock value of some $188,000,000. The great bulk of its activities, which it carried on without the State, consisted in acting as a holding company, it having some 50 subsidiaries. In 1935, it employed in the State tangible property worth (round figures) $331,000, paid wages of $15,000, and received in sales only $31,000; yet, under the formula, it owed $192,000 in taxes. The court stated the corporation was engaged in a multiform business, wherein much of the capital stock value was not “concerned with the functions exercised within the State”; upheld the constitutionality of the act; pointed out this was an “exceptional situation here presented”; then directed that proper allowance be made for capital stock value which bore no relation to privilege.

We have read, with care, the other cases cited, but see no useful purpose in analyzing them. Household seems to lose sight of the unitary type of its operations described in the Court below as a “national ganglion”. The vast financial combine which it is, necessarily must have an operating business head. Judgments, decisions and policies made and administered out of headquarters tie together and coordinate the activities of its many field offices.

It is by the use of sound business judgment at the seat of management, that the life blood of a financial operation like Household is channeled to those field functions requiring additional capital. Through the operation of its headquarters, and the combined borrowing power which the complex gives thereto, the most advantageous rates of interest may be attained with resultant benefit to all parts of the corporate body. The branches in Maryland, some peculiarly so because of their geographical proximity to territory where similar business was prohibited, contributed to the whole; and, naturally, obtained many benefits therefrom. It indeed, would be difficult to envisage a better illustration of a unitary function than this huge financial concern.

We, therefore, decide Household was engaged in a unitary enterprise. Commonwealth v. Ford Motor Co., 350 ⁹⁶ Pa. 236 , 38 A. 2d 329 ; Commonwealth v. Quaker Oats Co., 350 Pa. 253 , 38 A. 2d 325 ; 38 Harv. L. Rev. 531 ; Bonbright, Valuation of Property, Vol. 2, pp. 658, et seq. In Wallace v. Hines, supra, the Supreme Court stated, in a situation similar to this, property without the State could not be taken into account “unless it can be seen in some plain and fairly intelligible way that it adds to the value * * * in the State”.

We think it can reasonably and plainly be seen and understood that the worth of such assets, tangible or intangible, as headquarters office equipment, cash on hand and monies on deposit and the business acumen of the headquarters personnel of a large, co-ordinated, single purpose enterprise such as this, is reflected in the value of