Industrial Finance Corp. v. State Tax Commission

• Decision Date: 09 April 1975
• Citation: 367 Mass. 360,326 N.E.2d 1
• Parties: INDUSTRIAL FINANCE CORPORATION v. STATE TAX COMMISSION (and four companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1

326 N.E.2d 1

367 Mass. 360

INDUSTRIAL FINANCE CORPORATION v. STATE TAX COMMISSION (and four companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 3, 1974.

Decided April 9, 1975.

Joel A. Kozol, Boston, for the taxpayer.

Kenneth A. Behar, Asst. Atty. Gen., for the State Tax Commission.

Before TAURO, C.J., and REARDON, BRAUCHER, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

These are consolidated appeals of the Industrial Finance Corporation (the taxpayer) and Merritt, Chapman and Scott Corporation ² pursuant to G.L. c. 58A, § 13, as amended through St.1969, c. 692, ³ from decisions of the Appellate Tax Board (the Board) denying abatements of corporate excise taxes paid under G.L. c. 63, § 32, for the taxable years 1963 through 1967.

The taxpayer is in the business of lending money. Its loans, represented by promissory notes, range in amount from $2,000 to over $1,000,000 and are made for personal and business purposes. Some of to notes are unsecured. The collateral for secured notes consists, inter alia, of real estate mortgages, chattel mortgages, assignments of accounts and pledges of stock.

In each of the taxable years in question, the taxpayer ⁴ filed timely applications with the Commissioner of Corporations and Taxation (Commissioner) for classification as a domestic securities corporation entitled to favorable tax treatment under G.L. c. 63, § 38B. ⁵ Each of the applications was denied by the Commissioner. For each of the years, the taxpayer filed corporation excise returns in which it computed the excise under G.L. c. 63, § 38B, as a domestic securities corporation. For each of the years, the State Tax Commission (Commission) gave notice to the taxpayer of its intention to assess a tax on the increased taxable net income and, thereafter, assessed an excise computed under G.L. c. 63, § 32. The assessed excises were paid, ⁶ and applications for abatement were filed. ⁷ Each of the applications was deemed to be denied by operation of law by reason of the failure of the Commission to act thereon prior to the expiration of six months from the date of filing. G.L. c. 58A, § 6. The taxpayer ⁸ then initiated timely appeals to the Board from such denials. The appeals were consolidated for hearing before the Board under the formal procedure. The taxpayer filed requests for rulings of law. On November 1, 1972, the Board issued its decisions sustaining the position of the Commission. On November 9, 1972, the taxpayer entered a request for 'Findings of Fact and Report.' The Board promulgated its 'Findings of Fact and Report' on January 4, 1974. These appeals followed. The amount in controversy versy exceeds $1,000,000.

1. General Laws c. 63, § 38B, as amended by St.1962, c. 756, § 7, ⁹ and St.1966, 1966, c. 698, § 60, ¹⁰ provides favorable excise tax treatment for every domestic business corporation ¹¹ 'which is engaged exclusively in buying, selling, dealing in, or holding securities on its own behalf and not as a broker.' In these appeals, the taxpayer asks us to focus narrowly on the question whether promissory notes are securities within the meaning of G.L. c. 63, § 38B. This, it urges, was the sole question addressed by the Board, and is the sole question properly before this court. If promissory notes are, indeed, such securities, the taxpayer claims that, because it exclusively dealt in and held promissory notes, it must be held entitled to an abatement of the corporate excise. The Commission responds that the true issue is a broader question whether a corporation engaged in the taxpayer's various business activities can be classified as a security corporation under G.L. c. 63, § 38B. The Commission argues that the Board was correct in finding that the business of the taxpayer was lending money and not holding and dealing in securities.

The Commission's formulation of the issues of the case is the correct one. It is true that, under G.L. c. 58A, § 13, this court cannot 'consider any issue of law which does not appear to have been raised in the proceedings before the board.' Assessors of Dover v. Dominican Fathers Province of St. Joseph, 334 Mass. 530, 535, 137 N.E.2d 225, 228--229 (1956). However, the broad question whether the taxpayer's activities qualified it for classification as a security corporation entitled to beneficial tax treatment under G.L. c. 63, § 38B, was raised in the Board proceedings. The reasoning of the Board in its opinion was not confined to the narrow definitional issue whether a promissory note is a security. In reaching its decisions, the Board examined the taxpayer's business to determine if the business met the statutory requirement. It found the taxpayer's business to be 'lending money' and not 'investing, reinvesting, or trading in securities.' Moreover, the taxpayer's own 'Request for Rulings of Law,' granted in this respect, identified the issues in the case in the same expansive vein as the Commission does: '1. The only issues raised by the evidence in this matter are: . . . (2) whether Industrial Finance Corporation was engaged exclusively in buying, selling, dealing in, or holding securities during the period 1963--1967; and (3) whether Industrial Finance Corporation is entitled to be taxed as a security corporation in accordance with the provisions of M.G.L. ch. 63, Sec. 38B.'

2. 'The general and familiar rule is that a statute must be interpreted according to the intent of the Legislature ascertained from all the words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the mainobject to be accomplished, to the end that the purpose of its framers may be effectuated.' Hanlon v. Rollins, 286 Mass. 444, 447, 190 N.E. 606, 608 (1934). Accord, Lincoln-Sudbury Regional Sch. Dist. v. Brandt-Jordan Corp. of New Bedford, 356 Mass. 114, 117--118, 248 N.E.2d 477 (1969). 'Where the (legislative) intent is clear, the statute, if reasonably possible, must be construed to carry out that intent.' Commissioner of Corps. & Taxn. v. Assessors of Boston, 324 Mass. 32, 36, 84 N.E.2d 531, 534 (1949). From the legislative history of G.L. c. 63, § 38B, and commentary on that history, it is plain that a corporation such as the taxpayer which actively engaged in secondary findancing ¹² and making loans is not within the class of corporations intended to be benefited by G.L. c. 63, § 38B. This class of corporations includes only those corporations which acquire securities for investment.

Two annual reports of the Commissioner provide insight into the legislative intent in enacting G.L. c. 63, § 38B. In the annual report wherein the initial enactment of G.L. c. 63. § 38B (St.1929, c. 359, § 1), is proposed, the Commissioner explained the need for the provision. Under the heading, 'Security Investment Corporations,' he urged that domestic 'corporations having primarily investments in securities' receive tax advantages to offset tax benefits which could be achieved by incorporation in other States and to encourage them to incorporate under Massachusetts law. 1929 House Doc. No. 14, p. 8.

In his report two years later, the Commissioner, while proposing an amendment to the law, specified those corporations within the coverage of the statute: 'Security Corporations.--By the passage of chapter 359 of the Acts of 1929 the Legislature of Massachusetts undertook to deal with the problem of the so-called investment trust which had incorporated, and which in taxation did not lend itself to the tax laid generally against domestic business corporations under which corporation laws the security companies were obliged to incorporate, by providing that the tax on security corporations should be the same as that paid by an individual under the Massachusetts income tax law. These corporations dealing exclusively in securities for their certificate holders seemed clearly to be entitled to treatment which was accorded the individual.' 1931 House Doc. No. 115, p. 3.

The commentators agree with the quoted position of the Commissioner that investment trusts which had incorporated were the intended beneficiaries of St.1929, c. 359, § 1, and G.L. c. 63, § 38B. Philip Nichols wrote that G.L. c. 63, § 38B, benefits a 'newly created class of corporations engaged in the business of buying, selling and holding securities, sometimes called 'incorporated investment trusts. " Nichols taxation in Massachusetts 61s (3d ed. 1938). Accord, Barrett and Bailey, Taxation, § 842 (1961).

The incorporated investment trust supplies an investment vehicle for its stockholders. The stockholders contribute to the corporate pool of capital for investment and receive the advantages of investment diversification and expert management. See Aldred Inv. Trust v. Securities & Exch. Commn., 151 F.2d 254, 260 (1st Cir. 1945), cert. den., 326 U.S. 795, 66 S.Ct. 486, 90 L.Ed. 483 (1945); Note, 41 Col.L.Rev. 270 (1941). One authority has characterized the investment trust as 'an agency (i.e., it may be a corporation, a common law trust . . .) by which the combined funds . . . of different participants . . . are placed in securities . . . showing a distribution of risk . . . such as to introduce the 'law of average' in protection of the principal; and which aims solely at the safe and reasonably profitable employment of the subscribed investment funds while definitely avoiding any and all of those responsibilities of control, management, finance, direction or special interest which are sometimes tied in with investment.' Robinson, Investment Trust Organization and Management, 13--14 (Rev.ed.1929). The essential...