F. W. Woolworth Co. v. Commissioner of Taxes of State

• Decision Date: 01 October 1974
• Docket Number: No. 36-74,36-74
• Parties: F. W. WOOLWORTH COMPANY v. COMMISSIONER OF TAXES OF the STATE of Vermont.
• Court: Vermont Supreme Court

Page 402

328 A.2d 402

133 Vt. 93

F. W. WOOLWORTH COMPANY v. COMMISSIONER OF TAXES OF the STATE of Vermont.

No. 36-74.

Supreme Court of Vermont.

Oct. 1, 1974.

Motion for Reargument Denied Nov. 14, 1974.

Paterson, Gibson, Noble & Brownell, Montpelier, for plaintiff; Armstrong & Bray, New York City, of counsel.

Kimberly B. Cheney, Atty. Gen., James E. Hirsch, Asst. Atty. Gen., and Charles E. Goldkamp, Deputy Commissioner of Taxes, for defendant.

Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.

DALEY, Justice.

This is an appeal from an order of the Washington County Court affirming a determination of the Commissioner of Taxes. That determination was a result of a remand ordered by this Court in F. W. Woolworth Co. v. Commissioner of Taxes, 130 Vt. 544, 298 A.2d 839 (1972). F. W. Woolworth Co., the appellant, here argues that the Commissioner of Taxes did not completely comply with this Court's holding in that case in making his determination. The Commissioner of Taxes, the appellee, here contends that his determination is indeed in full compliance with this Court's holding in that case.

This matter originated when Woolworth complained of an assessment of additional corporate income taxes against it by the Commissioner for the years 1966 through 1969. The heart of Woolworth's complaint was the Commissioner's disallowance of Woolworth's exclusion from its taxable income of the 'foreign tax credit dividend gross-up' which was reported as income on Woolworth's Federal tax return.

This item, known as 'gross-up', is taxable under the laws of the United States in the following situation. In Section 902 of the Internal Revenue Code, a domestic corporation, i. e. within the United States, which owns at least ten per cent of the voting stock of a foreign corporation from which it receives dividends in any taxable year, is deemed to have paid part of the taxes paid or deemed paid by the foreign corporation to the extent the dividends are paid out of accumulated profits for the year. The amount deemed paid by the domestic corporation is that proportion of the foreign taxes which the amount of dividends actually received bears to the amount of accumulated profits minus foreign taxes paid or accrued. 34 Am.Jur.2d Federal Taxation 8414 (1969). A domestic corporation electing to take a 'deemed paid foreign tax credit' must add to its gross income the amount of the deemed paid foreign taxes before it takes the credit. The purpose of 'gross-up' is to avoid giving the domestic corporation both a credit and a deduction for the foreign tax deemed paid on its federal income tax return, which would otherwise result from the allowance of a full credit against tax liability computed only on the dividend paid. See F. W. Woolworth Co. v. Commissioner of Taxes, supra, 130 Vt. at 551, 298 A.2d 839.

Under the Vermont corporate income tax structure, it is necessary to determine the amount of Woolworth's taxable income under the laws of the United States because that is the starting point for the assessment of the Vermont corporate income tax. 32 V.S.A. §§ 5811(18), 5888; F. W. Woolworth Co. v. Commissioner of Taxes, supra, 130 Vt. at 552, 298 A.2d 839. Where the income of a taxable corporation is derived from business activity conducted both within and without Vermont, as in Woolworth's case, an apportionment of the corporation's taxable income under the laws of the United States is made, so that only that part of the income earned by a corporation in Vermont is subject to the Vermont corporate income tax. 32 V.S.A. § 5833(a). See Union Twist Drill Co. v. Harvey, 113 Vt. 493, 507, 37 A.2d 389 (1944). See also Norfolk and Western Railway Co. v. Missouri Tax Commission, 390 U.S. 317, 325, 88 S.Ct. 995, 19 L.Ed.2d 1201 (1968).

To undertake this apportionment, a formula is provided in 32 V.S.A. § 5833. This formula allocates to Vermont a fair and equitable portion of taxable income of a corporation under the laws of the United States utilizing three factors: (1) the ratio of all real and tangible property within Vermont to all such property both within and without Vermont; (2) the ratio of total wages, salaries and other personal service compensation paid within Vermont to all such compensation paid whether within or without Vermont; and (3) the ratio of gross sales, or charges for services performed, within Vermont to all such sales and charges whether within or without Vermont.

In F. W. Woolworth Co. v. Commissioner of Taxes, supra, 130 Vt. at 557, 298 A.2d at 846, this Court required the Commissioner to adjust the apportionment formula under the authority vested in him by 32 V.S.A. § 5833(b) and reassess Woolworth's corporate income taxes for the years 1966 through 1969 because:

The obvious effect of including the 'gross-up' . . . is to increase the Vermont net income by including this item of foreign subsidiary dividend income in the Vermont net income, while at the same time failing to reflect in the three factors any of the activities of the foreign subsidiaries which have no business activity in Vermont.

In the above quotation the term 'Vermont net income' means the taxable income of the corporation for the taxable year under the laws of the United States. 32 V.S.A. § 5811(18). It should be noted that the Legislature has since excluded from Vermont net income the gross-up of dividends required by the Federal Internal Revenue Code to be taken into taxable income in connection with the taxpayer's election of the foreign tax credit. See Section 12 of No. 73 of the Public Acts of 1971.

Following this Court's opinion, the Commissioner issued a determination in which he adjusted the apportionment formula utilized to allocate a fair and equitable portion of Woolworth's taxable income under the laws of the United States to Vermont for the years 1966 through 1969. His new formula included the property, wages, and sales of Woolworth's foreign subsidiaries as factors to allocate a fair and equitable portion of the 'gross-up' item of Woolworth's taxable income. The Commissioner maintains that this determination is in full compliance with this Court's holding in F. W. Woolworth Co. v. Commissioner of Taxes, supra.

Woolworth argues that the Commissioner's determination does not comply with this Court's holding because, as stated in its brief, 'the formula should be modified to include foreign property, payroll, and sales to the extent the non-'gross-up' portion as well as the 'gross-up' portion of foreign dividends are included in apportionable income.' This argument is predicated on the assumption that the dividend income that Woolworth receives from its foreign subsidiary corporations and its 'gross-up' of its Federal taxable income that it is required to make in order to take the 'deemed paid foreign tax credit' cannot be separated for purposes of allocation. These items, therefore, would both be apportioned utilizing the Commissioner's adjusted formula, rather than the formula used to allocate other forms of taxable income. Woolworth supplements this argument with the allegation that its foreign dividends represent income from its foreign stores, thus necessitating the inclusion of the foreign apportionment factors in the apportionment formula to allocate a fair and equitable portion of its dividend income to Vermont.

Similar arguments as these were heard by this Court in Gulf Oil Corp. v. Morrison, 120 Vt. 324, 141 A.2d 671 (1958). Although that case was decided when the taxation of corporations was accomplished under a franchise tax, the apportionment formula there utilized to allocate a fair and equitable portion of net income of the corporation to Vermont was identical to the one now contained in 32 V.S.A. § 5833(a). Furthermore, both the franchise tax and the corporate income tax utilized the taxable income reported on the corporation's Federal tax return as the starting point for the assessment of the tax. Compare F. W. Woolworth Co. v. Commissioner of Taxes, supra, 130 Vt. at 550-553, 298 A.2d 839, with Gulf Oil Corp. v. Morrison, supra, 120 Vt. at 326-327, 141 A.2d 671.

Gulf Oil Corporation argued against the taxation of dividends it received from its wholly owned subsidiaries which had no direct relationship with its business in Vermont. It alternatively argued that the tax imposed on such dividends was illegal because the Commissioner of Taxes imposed the tax without modifying the allocation formula to include the value of the stock of the corporations located wholly without Vermont from which it received the dividends.

This Court, in Gulf Oil Corp. v. Morrison, supra, pointed out that the assessment of the tax against dividends received is not a tax assessed against the corporations paying those dividends. It is a tax asessed solely against the income of the corporation which receives those dividends. Id. 120 Vt. at 328, 141 A.2d 671. This is true regardless whether the tax is called a franchise or corporate income tax. Therefore, the allegation that dividend income must be deemed to be income from Woolworth's foreign stores, necessitating the inclusion of the foreign apportionment factors in the apportionment formula, cannot be sustained.

Dividened income is reported as part of the Vermont net income from the Federal tax return of the corporate taxpayer. F. W. Woolworth Co. v. Commissioner of Taxes, supra; Gulf Oil Corp. v. Morrison, supra, 120 Vt. at 328, 141 A.2d 671. Such income, being a integral...