Harvard Trust Co. v. Comm'r of Corps. & Taxation

• Decision Date: 31 October 1933
• Citation: 187 N.E. 596,284 Mass. 225
• Parties: HARVARD TRUST CO. v. COMMISSIONER OF CORPORATIONS & TAXATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 225

187 N.E. 596

HARVARD TRUST CO.

v.COMMISSIONER OF CORPORATIONS & TAXATION.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 31, 1933.

Appeal from Supreme Judicial Court, Suffolk County.

Proceeding by the Harvard Trust Company against the Commissioner of Corporations & Taxation for the abatement of an income tax. From a decision by the Board of Tax Appeals denying the petition for abatement, the petitioner appeals.

Petition dismissed.

W. Noyes, of Boston, for appellant.

J. E. Warner, Atty. Gen., and C. F. Lovejoy, Asst. Atty. Gen., for Commissioner of Corporations and Taxation.

RUGG, Chief Justice.

This is a proceeding for the abatement of an income tax assessed to a trustee with respect to gains from purchases and sales of securities belonging to the principal of a trust estate. The appellant is a trust company organized under the laws of this Commonwealth and having its usual place of business in Cambridge. In 1928 it was appointed by the appropriate probate court of the state of Vermont, trustee under the will of a deceased resident of that state whose will had been duly proved and allowed by that court. By the will the residue of the testator's estate was given to the appellant in trust, after an annuity to a sister, to pay the balance of the net income in equal parts to three children of the testator and to distribute the principal upon the termination of the trust among their issue. The sister and one of the children are residents of this Commonwealth, another child is a resident of Vermont, and the third of Illinois. The persons entitled to the remainder are persons unknown or unascertained. The securities were kept by the appellant in this Commonwealth. Under the laws of Vermont the appellant filed a stipulation that property held by it by virtue of its appointment should be taxed in the same manner and to the same extent as funds of the same character held by a trust company in that state, and it received a certificate of authority to act as trustee in Vermont. Taxes were assessed to and paid by the appellant in Vermont, which were computed on a percentage of the valuation of the trust estate and amounted for 1929 to $2,561.56 and for 1930 to $3,790.37. The appellant during 1929 received gains from sales of intangible personal property constituting a part of the corpusof the trust on which a tax, after the allowance of a partial abatement, amounting to something more than $2,300 was assessed by the commissioner of corporations and taxation and is here sought to be abated.

This tax was assessed under G. L. c. 62, § 10, as it stood prior to its amendment by St. 1931, c. 456, § 1. Its material words were: ‘The income received by estates held in trust by trustees, any one of whom is an inhabitant of the commonwealth * * * shall be subject to the taxes assessed by this chapter to the extent that the persons to whom the income from the trust is payable, or for whose benefit it is accumulated, are inhabitants of the commonwealth. Income accumulated in trust for the benefit of unborn or unascertained persons or persons with contingent interests shall be taxed as if accumulated for the benefit of inhabitants of the commonwealth.’

The gains on which the tax was assessed belonged to the principal of the trust estate. If subject to taxation in this Commonwealth, such gains were taxable as income accumulated for the benefit of those interested in the remainder, who confessedly were persons unborn or unascertained. The appellant, being incorporated under the laws of, and having its usual place of business at Cambridge within, this Commonwealth, is an inhabitant of and domiciled in this Commonwealth. Collector of Taxes of Boston v. Proprietors of Mount Auburn Cemetery, 217 Mass. 286, 290, 104 N. E. 750;National Leather Co. v. Commonwealth, 256 Mass. 419, 424, 152 N. E. 916;Cream of Wheat Co. v. Grand Forks County, N. D., 253 U. S. 325, 328, 40 S. Ct. 558, 64 L. Ed. 931.

The appellant contends, however, that the statutes of Vermont, in which state the appellant has been assessed and has paid a property tax, prevent a legal assessment of the income in this Commonwealth. This contention rests in part upon subsection 5 of the Vermont General Laws, c. 38, § 703, as amended by Acts of 1929, No. 21, which is in these words: ‘ Trust Estate. Personal estate held in trust, except such as shall be so held by banking institutions and taxed under the provisions of chapter forty-six or forty-eight, the income of which is to be paid to or expended for the benefit of another person or beneficiary, shall be set in the list to the person holding it in trust or to the trustee, in the town, village, school and fire district where such other person, or beneficiary, resides, if he resides in this state, otherwise to the person holding it in trust, or to the trustee, in the town, village, school and fire district where he resides, or if the trustee is a corporation, where such corporation has its principal office; but if the person holding it in trust, or the trustee, resides without the state, the equitable interest of such other person, or beneficiary, in such trust property shall be set in the list to such other person, or beneficiary, in the town, village, school and fire district where he resides; and if such trust was created under the laws of this state, or was established under the terms of a will probated in this state, and the person holding the property in trust, or the trustee, and the beneficiary, both reside without the state, then the equitable interest of the beneficiary shall be set in the list to him, or to the trustee, in the town, village, school and fire district where the creator of the trust, or the decedent, last resided in this state.’ There was received in evidence an affidavit of local assessors, called listers, stating that in the exercise of authority given them the taxes in question were assessed under the first clause of this subdivision 5. This statute, so far as we are aware, has not been interpreted by the Supreme Court of Vermont in respect to this contention as applied to facts similar to those here presented. It is therefore our duty to construe it. Western Life Indemnity Co. of Illinois v. Rupp, 235 U. S. 261, 274, 35 S. Ct. 37, 59 L. Ed. 220. This statute in its first clause provides for a tax on the corpus of the fund to a resident trustee only in the event that the beneficiary resides out of the state. It makes no provision for a tax on the corpus of the fund when the trustee is a nonresident. As already pointed out, the appellant resides out of the state. Therefore, the tax assessed in Vermont could not rightly have been assessed under the first part of subsection 5 upon the corpus of the trust. In the circumstances disclosed the equitable interest of the beneficiaries resident in Vermont alone could have been taxed under that part of...