Opinion
This case having been heard by the Court of Claims, the court, pursuant to the stipulations of the parties, makes the following special findings of fact:
1. Plaintiff is a fire insurance society without capital stock, organized as a voluntary association on February 17, 1794, and incorporated by an act of the General Assembly of the state of Maryland December 26, 1794, and having its principal office and place of business in Baltimore, Md. Its original charter provided for insuring houses from loss by fire and that the members should contribute equally to the losses and share the gains and advantages arising by reason of the covenants of insurance and the payments required from the subscribers or members. Every person insuring was required to deposit a certain sum which was to be returned at the expiration of the policy taken out with a proportionable dividend of the profits that had accrued, deducting losses and incident charges only.
2. In 1858, at a general meeting of the members of the society, a resolution was adopted authorizing plaintiff to write term insurance for a fixed premium for a period of less than seven years, and also permanent insurance. Policyholders holding such term insurance contracts were not entitled to insurance contracts were not entitled to any refund of premiums paid upon surrender or cancellation of such policies, and as such were not entitled to share in any distribution of the earnings and profits of the company, nor did nay such policyholders have any voice in the control or management of the company.
3. In 1865, at a general meeting of the members of the society, a resolution was adopted which provided for perpetual insurance to its members and did away with the former practice of issuing policies to members for periods of seven years. The plan of perpetual insurance which was inaugurated in 1865 has continued in effect ever since that date. Under the plan a member on payment of a fixed deposit is protected against partial or total loss by fire of the property insured, to the extent insured, perpetually or until such time as he ceases to be a member by reason of withdrawing his deposit. The entire amount of the deposit is returned to the member upon the cancellation of his policy whenever demanded.
4. By an act of the General Assembly of the state of Maryland approved May 3, 1882, plaintiff was authorized to insure wooden and frame buildings as well as stone and brick buildings by perpetual or permanent policies or for any period of time which might be agreed on between the parties at the time of effecting the insurance and for a deposit or a premium paid, but providing that only persons insured by deposits should have the rights or be subject to the liabilities of members of the corporation.
5. At a general meeting of the members of the Society on May 19, 1891, a resolution was adopted which provided inter alia for a dividend distribution to its members as soon as the "Reserved Surplus" amounted to 10 per cent. of the aggregate amount of risks, plus $60,000. It also provided that all losses and expenses of the Society should be paid out of income and, to the extent that income was insufficient, out of "Reserved Surplus," which was to be held for such purposes. NO dividends have ever been paid by the Society.
The respective amounts of "Reserved Surplus" and perpetual and term insurance of the Society as at December 31 were as follows:
Insurance Risks
-----------------------------------------------------------------------------
Year
Reserved surplus
Perpetual
Term
Total
------
----------------
----------------
---------------
----------------
1931 .....
$1,600,941.42
$17,439,522.00
$2,333,484.00
$19,773,006.00
1932 ......
1,629,687.55
17,387,747.00
2,454,668.00
19,842,415.00
1933 ......
1,683,277.91
17,309,514.00
2,401,968.00
19,711,482.00
Plaintiff duly filed its federal income tax return for the calendar year 1933, a copy of which is attached to the stipulation, marked Exhibit A, and by reference made a part hereof.
6. The governing power of the plaintiff resides in its members, only perpetual policy-holders being members with the right to vote.
7. On August 29, 1933, plaintiff filed with the collector of internal revenue, Baltimore, Md., a paper headed "Return of capital stock tax for year ending June 30, 1933," which document showed, among other things, that it had neither common nor preferred stock but did have a surplus in the amount of $1,600,766.77 for which an exemption was claimed in the return and in a separate claim.
8. The Commissioner of Internal Revenue in a letter dated February 5, 1935, notified plaintiff that its claim for exemption from capital stock tax was denied for the reason that plaintiff was taxable under section 208 of the Revenue Act of 1932 (47 Stat. 227) for income tax purposes and not under section 204 of said act (47 Stat. 225) and requested the filing of a completed capital stock tax return.
Plaintiff in a letter dated February 16, 1935, requested further information with respect to the Commissioner's letter of February 5, 1935.
9. Plaintiff under date of March 2, 1935, filed under protest a capital stock tax return for the taxable year ending June 30, 1933, which showed that the value of the entire capital stock of the company was the same sum as had been stated in its previous return to be the amount of its surplus, namely, $1,600,766.77, and that the tax thereon was $1,600. This amount of tax, together with interest and penalty of $286.93, a total of $1,886.93, was paid under protest to the collector on April 15, 1935.
10. On September 7, 1935, plaintiff filed a claim for the refund of the capital stock tax so paid and interest and penalty thereon. As a basis for the claim of this refund it alleged therein that it was taxable for income purposes under section 204 of the Revenue Act of 1932 and that the Court of Claims had held in a former case that it was not a mutual society within the meaning of the Revenue Act of 1932 and by reason thereof it was entitled to exemption from capital stock tax under section 215(c)(2) of the National Industrial Recovery Act (48 Stat. 207). This claim for refund was rejected by the Commissioner of Internal Revenue on October 7, 1935.
Stanley Worth, of Washington, D.C., for plaintiff.
Guy Patten, of Washington, D.C., and Robert H. Jackson, Asst. Atty. Gen., for the United States.
Before BOOTH, Chief Justice, and GREEN LITTLETON, WILLIAMS, and WHALEY, Judges.
GREEN, Judge.
This case turns on the question of whether the plaintiff is a "mutual" insurance company within the meaning of that word as used in the federal taxing acts.
The plaintiff is a voluntary association organized for the purpose of carrying on a fire insurance business incorporated in 1794. Under its original charter the plaintiff was authorized to issue fire insurance to its members who contributed to the losses and shared in the gains equally. In 1858 the plaintiff was authorized to also write nonparticipating term insurance to nonmembers, and in 1865 the plaintiff was authorized to issue perpetual insurance to its members. Under this plan a member, upon payment of a fixed deposit, is protected against loss by fire perpetually, or until he ceases to be a member by withdrawing his deposit. Only perpetual policyholders insured by deposits have the right or are subject to the liabilities of members of the corporation. During the years 1931, 1932, and 1933, plaintiff's term insurance constituted approximately 12 per cent. and its perpetual insurance 88 per cent. of its outstanding insurance risks. In its federal income tax return for 1933 plaintiff reported the "Kind of Business" in which it was engaged as that of a "Mutual Fire Insurance Co.," and computed its income and its tax liability thereon upon the basis of premiums written, with a technical deduction for the net addition to reserve funds required by law to be made within the taxable year.
On August 29, 1933, the plaintiff filed with the collector of internal revenue a paper headed "Return of capital stock tax for the year ending June 30, 1933," which document showed, among other things, that it had neither common nor preferred stock but did have a surplus in the amount of $1,600,766.77 for which an exemption was claimed in the return and in a separate claim. The Commissioner of Internal Revenue notified the plaintiff that its claim for exemption of capital stock was denied for the reason that plaintiff was taxable under section 208 of the Revenue Act of 1932 (47 Stat. 227), and required the filing of a completed capital stock return. In compliance with this request, plaintiff, on March 2, 1935, filed under protest a capital stock return for the taxable year ending June 30, 1933, which showed that the value of the entire capital stock of the company was the same as had been stated in its previous return as the amount of its surplus and that the tax thereon was $1,600. This amount of tax, together with interest and penalty, totaling $1,886.93, was paid under protest to the collector. Subsequently, plaintiff filed a claim for refund of the amount so paid. The refund claim having been denied by the Commissioner, this suit was brought.
A peculiar feature of the situation is that the tax in controversy is a tax on the value of capital stock. The stipulation recites that the plaintiff had no capital stock of any kind but that it did have a surplus in a considerable sum and that this surplus was taxed as the amount of its capital stock. The plaintiff, however, does not base its objections to the tax on this ground but, like the Commissioner, treats the surplus as being the equivalent of capital stock. Plaintiff's claim that it is exempt from the capital stock tax rests upon statutory provisions.
The capital stock tax was imposed by the National Industrial Recovery Act (48 Stat. 207) which provides:
"Sec. 251. (a) For each year ending June 30 there is hereby imposed upon every domestic corporation with respect to carrying on or doing business for any part of such year an excise tax of $1 for each $1,000 of the adjusted declared value of its capital stock. * * *
"(c) The taxes imposed by this section shall not apply
"(1) to any corporation enumerated in section 103 of the Revenue Act of 1932;
"(2) to any insurance company subject to the tax imposed by section 201 or 204 of such Act."
The Revenue Act of 1932 (47 Stat. 193, 225, 227) contained in section 103 thereof (26 U.S.C.A. § 103 and note) certain provisions for exemption from the corporation tax by "farmers' or other mutual * * * fire insurance companies."
Section 204 of the same act provides for the imposition of a tax upon the net income of insurance companies other than life or mutual.
Section 208 imposed a tax upon the income of mutual insurance companies other than life in the same manner as other corporations, with certain exceptions not material here.
In a case brought by this same taxpayer (Baltimore Equitable Society v. United States, 3 F.Supp. 427, 432, 77 Ct.Cl. 566), the plaintiff claimed exemption from income taxes on the ground that it was a mutual company. In that case, after finding that about 10 per cent. of the plaintiff's business was nonparticipating term insurance, this court held that the plaintiff was not a mutual company within the meaning of the words as used in the taxing statute and said: "We think that when Congress provided the exemption set out in the statute it intended that it should apply only to companies that are purely mutual and that consequently the plaintiff was subject to the corporation tax."
It is urged on behalf of the defendant that this decision is not binding in the case now before us, for the reason that the court was then considering the application of different statutes. However this may be, the same reasoning applies. The statutes make no provision for apportioning the tax in accordance with the amount of business done under the mutual plan and the amount of term insurance, nor can we say that where the preponderance of business carried on is done under the mutual plan the company is mutual. Both the statutes under consideration in the case cited and those applicable to the instant case granted an exemption from the corporation tax to mutual companies. We do not think that this exemption was intended to apply to companies that were only partly mutual for such companies would be merely mutual in some respects. The statute, in our opinion, was meant to apply only to companies that were purely mutual.
Having reached this conclusion, it follows that plaintiff was exempt from the tax imposed in the instant case. The portions of the statute which have been set out above show that the capital stock tax did not apply to insurance companies subject to the tax imposed by section 204 of the Revenue Act of 1932. This section applies to insurance companies other than life or mutual. Plaintiff was not a life insurance company and was not a mutual company within the meaning of the law as we construe it. It was consequently subject to the tax imposed by section 204 and exempt from the capital stock tax.
The argument for the defendant calls attention to the income tax return of plaintiff filed for the year 1933 in which it was stated with reference to the kind of business carried on, "mutual fire insurance," and counsel for defendant contend that the return was made up in accordance with the provisions of section 208 as applied to mutual fire insurance companies. Counsel for plaintiff insists that the return warrants no such conclusion. The findings include a reference to the return, a copy of which was attached to the stipulation entered into by the parties. The return showed a loss, and we think it is immaterial whether the plaintiff intended it should conform to section 204 or section 208. If the plaintiff erred in making up its return, this was merely a mistake as to the law and is immaterial. It was not subject to tax under section 208 but under section 204, and is consequently exempt from the capital stock tax.
It follows that plaintiff is entitled to recover the amount of the tax, interest, and penalty paid, with interest thereon from the date of payment. Judgment will be entered accordingly.