Herschend v. Director of Revenue

• Decision Date: 25 April 1995
• Docket Number: No. 77325,77325
• Citation: 896 S.W.2d 458
• Parties: Raymond B. HERSCHEND, et al., Appellants, v. DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Supreme Court

Page 458

896 S.W.2d 458

Raymond B. HERSCHEND, et al., Appellants, v. DIRECTOR OF REVENUE, Respondent.

No. 77325.

Supreme Court of Missouri,

En Banc.

April 25, 1995.

Bruce Waugh, David Zimmerman, Carol Smith, Kansas City, for appellants.

Jeremiah W. (Jay) Nixon, Atty. Gen., James R. Layton, Gretchen Garrison, Asst. Atty. Gen., Jefferson City, for respondent.

LIMBAUGH, Judge.

Raymond and Kelly Herschend (the Herschends) seek a ruling that Tenn.Code Ann. § 67-4-806 (1994) ¹, a Tennessee corporate tax statute, is an "income tax" within the meaning of § 143.081.1, RSMo 1986, entitling them to a credit against their Missouri income tax liability. The Director of Revenue (Director), and, in turn, the Administrative Hearing Commission (AHC) determined that the Tennessee tax was not an "income tax," and, therefore, denied the credit. Because resolution of the appeal requires construction of § 143.081.1, a revenue law, this Court has exclusive jurisdiction. Mo. Const. art. V, § 3. Reversed and remanded.

Throughout the 1988 tax year, the Herschends were Missouri residents and shareholders of Silver Dollar City, Inc. (SDC), a Missouri S-Corporation. SDC operates theme and water parks in Missouri, Tennessee, Oklahoma, Georgia and Texas. As a result of its operations during the 1988 tax year, SDC paid both excise tax and franchise tax in Tennessee, §§ 67-4-806(a), 4-903(a); and corporate income tax in Georgia, Ga.Code Ann. § 48-7-21(a) (1993), and Oklahoma, Okla.Stat.Ann. tit. 68, § 2355(B) (1990).

The Herschends filed an original and two amended Missouri income tax returns for the 1988 tax year. Because of SDC's "subchapter S" tax status, corporate income tax liability is passed through to the shareholders. § 143.471, RSMo 1994. On their amended returns, the Herschends claimed a credit for the distributive share of taxes paid to Tennessee, ² Georgia and Oklahoma on the premise that each of these taxes was an "income tax," for which a credit is allowed under § 143.081.1. ³ As a result, they sought a refund of $8,665.

The Director treated the Tennessee excise tax (Tennessee tax) as a franchise tax rather than an "income tax," and disallowed the amount of the credit attributable to that tax. The refund claim was allowed only insofar as it was attributable to the Georgia and Oklahoma taxes. This litigation ensued.

The sole issue presented is whether the Tennessee tax is an "income tax" under § 143.081.1. That section provides, in pertinent part:

[a] resident individual ... shall be allowed a credit against the tax otherwise due under section 143.005 to 143.998 for the amount of any income tax imposed on him for the taxable year by another state of the United States....

It is undisputed that the term "income tax" as used in § 143.081.1 includes the distributive share of corporate income tax paid to another state by or on behalf of subchapter S corporation stockholders. Therefore, as agreed by the parties, if the Tennessee tax is a corporate income tax under Missouri law, then the Herschends are entitled to the credit and a refund of $3,825. If, however, the Tennessee tax is not a corporate income tax, then the Herschends cannot claim a credit, and they owe $894.

The Tennessee tax was enacted as part of the "Excise Tax Law" and provides, in part, as follows:

[a]ll corporations ... organized for profit under the laws of this state or any other state or country and doing business in Tennessee ... shall, without exception other than as provided herein, pay to the commissioner of revenue annually, an excise tax, in addition to all other taxes, equal to six percent (6%) of the net earnings for the next preceding fiscal year for business done in this state.

§ 67-4-806(a).

From the outset, the Director concedes that the label "excise tax" accorded by the Tennessee legislature is not controlling. Rather, both parties contend that § 143.091 requires this Court to define the term "income tax" in accordance with federal law. By its express terms, however, that statute does not apply if a different meaning is clearly required by the provisions of Chapter 143, that is, when Chapter 143 provides a ready definition.

In this case, there is no need to refer to federal law because the definition of corporate income tax can clearly be ascertained by reference to Missouri's corporate income tax statute, § 143.071.1, which states:

[f]or all tax years beginning on or after September 1, 1993, a tax is hereby imposed upon the Missouri taxable income of a corporation in an amount equal to six and one-fourth percent of Missouri taxable income.

Missouri taxable income is defined under § 143.431.1, RSMo 1993, as "federal taxable income" derived from sources within the state.

In comparison, the Tennessee tax is based on net earnings derived from sources within the state, and "net earnings," like the term "Missouri taxable income," is defined as "federal taxable income." § 67-4-805(a)(1). The two taxes, both based solely on federal taxable income, are essentially the same, the only difference being that Tennessee imposes the tax at the rate of 6% while Missouri imposes the tax at the rate of 6 1/4%. Therefore, we conclude that the Tennessee tax, under Missouri law, is a corporate income tax entitling the Herschends a credit under § 143.081.1.

The Director, citing King v. Procter & Gamble, 671 S.W.2d 784, 785 (Mo. banc 1984), and Centerre Bank of Crane v. Director of Revenue, 744 S.W.2d 754, 757 (Mo. banc 1988), contends that the characterization of the tax depends on the object on which the tax is imposed, not the measure of its calculation. Specifically, the Director suggests that the object of the Tennessee tax is the privilege of doing business in the state. Although that specific issue is not raised in King, this Court, in Centerre, held that a bank tax imposed on the privilege of doing business within the state was a franchise tax, even though the tax was measured by net income. Unlike the tax in Centerre, however, the sole object on which the Tennessee tax is imposed is income. Moreover, the statute makes no reference to the privilege of doing business in the state. Therefore, even under the "object test" the Tennessee tax must be an "income tax."

In arriving at this conclusion, we also note that Tennessee has a separate corporate franchise tax imposed on the privilege of doing business in the state, §§ 67-4-901 to 921. It is difficult to fathom why there would be two corporate franchise taxes, both of which are imposed on corporations for the privilege of doing business in the state.

The dissent suggests that § 67-4-806(b) does indeed refer to the privilege of doing business in the state. That section provides that every corporation doing business in the state shall pay the Tennessee tax as "recompense for the protection of its local activities and as compensation for the benefits it receives from doing business in Tennessee ...." Compensation for benefits, however, is not the same as "the privilege of doing business." All taxes are compensation for benefits provided by governments, benefits such as roads, schools, police protection, fire protection, etc. Only franchise taxes, however, are imposed on the privilege of doing business in the state.

In that regard, the critical distinction between an income tax and franchise tax is that the former is imposed to compensate the state for benefits already received, while the latter is imposed and payable in advance for the privilege of exercising the right to do business in the state in the future. Educational Films Corp. v. Ward, 282 U.S. 379, 388, 51 S.Ct. 170, 171-72, 75 L.Ed. 400 (1931). Consequently, if a corporation ceases to do business during a particular year in which it has generated income, it would still be subject to income tax, id., but not franchise tax. The Tennessee tax, unlike a franchise tax, is compensatory, and it is due even if the corporate entity ceases to exist and discontinues doing business in the state. See Tennessee Growers, Inc. v. King, 682 S.W.2d 203, 204-06 (Tenn.1984) (corporate taxpayer that liquidated held responsible for the Tennessee tax).

In conclusion, we hold that the Tennessee tax is an "income tax" for purposes of § 143.081.1. ⁴ Accordingly, the Herschends are entitled to a refund in the amount of $3,825. The decision of the AHC is reversed, and the case is remanded with instructions to order the refund.

COVINGTON, C.J., and HOLSTEIN, BENTON, THOMAS and PRICE, JJ., concur.

ROBERTSON, J., dissents in separate opinion filed.

ROBERTSON, Judge, dissenting.

The Tennessee Constitution prohibits the Tennessee legislature from imposing an income tax. Tenn. Const. art. II, § 28. Aware of that constitutional prohibition, the Tennessee legislature enacted a law that imposed an annual six percent excise tax on the net earnings of corporations. Tenn.Code Ann. § 67-4-806(a) (1988).

The taxpayers in this case paid their tax to Tennessee without so much as an official whimper. They did not claim--by way of lawsuit or protest--that the tax Tennessee demanded violated the Tennessee constitutional provision against income taxes. Hoping for a home court advantage, however, they claim in this Court that they paid Tennessee an income tax and want the credit Section 143.081.1, RSMo 1994, grants for "any income tax imposed on him for the taxable year by another state."

By its own terms, Section 143.081.1 conditions its credit on the payment of income tax imposed by another state. Thus, it seems blindingly obvious that the nature of the tax Tennessee imposes is at least worthy of some discussion in resolving the issues presented in this case.

Repeatedly, the Tennessee Supreme Court has stated that the Section 67-4-806(a) excise tax is not an income tax. "This excise tax is upon the privilege of doing business in corporate form in this State." Roane Hosiery, Inc. v. King, 214 Tenn. 441, 381 S.W.2d 265, 267 (1964) (citing Texas Gas Transmission Corp. v....