Frothingham Bldgs. v. Commonwealth

• Decision Date: 23 May 1924
• Citation: 249 Mass. 290,144 N.E. 229
• Parties: FROTHINGHAM BUILDINGS v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

249 Mass. 290

144 N.E. 229

FROTHINGHAM BUILDINGS

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1924.

Appeal from Supreme Judicial Court, Suffolk County.

Petition by the Frothingham Buildings against the Commonwealth to recover excise taxes. Petitions were dismissed, and petitioner appeals. Affirmed.

F. T. Field and E. B. Horn, both of Boston, for appellant.

A. Lincoln, Asst. Atty. Gen., for the Commonwealth.

DE COURCY, J.

The petitioner, a domestic corporation organized under Sp. Acts 1889, c. 171, seeks to recover excise taxes assessed for the years 1919 and 1920, under St. 1919, c. 355, St. 1920, cc. 550 and 600, and G. L. c. 63. The controlling question is whether it was ‘carrying on or doing * * * business' or ‘doing business for profit’ within the meaning of those statutes. It was incorporated ‘for the purpose of holding, managing, improving and leasing’ certain real estate on Washington street, Boston, ‘and of performing all other legal acts which may be necessary for accomplishing such objects.’ It forthwith acquired title to the land and building; leased the premises to R. H. White, and later to the R. H. White Company; and the latter has since occupied all the petitioner's real estate under the original lease and extensions thereof. By the terms of the lease the lessor is required to make all necessary outside repairs of the building, except window glass, but including skylights in the roof; and no alterations or additions may be made without the prior written consent of the lessor.

In addition to this real estate the petitioner's assets consisted of cash and invested securities, as set out in the agreed facts. During the period in question its principal activities have been: Handling the receipts and disbursements, as shown in certain schedules; the purchase and sale of said securities; making and approving repairs under the provisions of the lease; negotiating insurance on the property; payment of dividends, taxes, interest on mortgages, salaries of officers and insurance premiums, holding meetings of directors and stockholders; negotiating three temporary loans; and prosecuting a claim against the city of Boston for damages to its property.

We are of opinion that the performance of these activities constituted a doing of business, within the meaning of that word as used in the tax statutes. In fact these were the very functions for which the petitioner was organized. Copper Range Co. v. Commonwealth, 218 Mass. 558, 576, 106 N. E. 310;Attorney General v. Boston & Albany Railroad, 233 Mass. 460, 462, 124 N. E. 257;Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55, 56, 136 N. E. 375, 27 A. L. R. 1131. In the Copper Range Case the plaintiff was organized as a holding company; and its activities consisted substantially in receiving income from securities, and paying salaries and dividends; but this court held that it was doing business in this commonwealth. For cases arising under tax laws of the United States, in which words similar to those in the statute under consideration are given a like interpretation, see Flint v. Stone Tracy Co., 220 U. S. 107, 171, 31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312;Von Baumbach v. Sargent Land Co., 242 U. S. 503, 37 Sup. Ct. 201, 61 L. Ed. 460. See, also, Hecht v. Malley, 44 Sup. Ct. 462, 68 L. Ed. 949.

The petitioner relies mainly upon the case of Attorney General v. Boston & Albany Railroad, 233 Mass. 460, 124 N. E. 257. The defendant in that case had leased its entire property to the New York Central Railroad for 99 years, with legislative permission. The basis of the decision appears in the statement (page 465 ):

‘When a corporation established for the operation of a railroad is permitted by the sovereign power to retire utterly from that business, to become wholly inactive respecting it, and to be simply the quiescent recipient of a fixed income from a single permanent investment, it is difficult to say with due regard to the meaning of words that such a corporation is conducting business for profit. * * * It exercises none of the...