Purvis v. U.S.

• Decision Date: 18 July 1974
• Docket Number: No. 72-2001,72-2001
• Citation: 501 F.2d 311
• Parties: 74-2 USTC P 16,157 Ralph E. PURVIS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 311

501 F.2d 311

74-2 USTC P 16,157

Ralph E. PURVIS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 72-2001.

United States Court of Appeals, Ninth Circuit.

July 18, 1974.

Ralph E. Purvis, in pro per.

David E. Carmack, Atty., Dept. of Justice (argued), Washington, D.C., for defendant-appellee.

Before MERRILL and WALLACE, Circuit Judges, and BURNS, District judge. ^*

OPINION

MERRILL, Circuit Judge:

Plaintiff seeks to recover taxes paid by him under the Interest Equalization Tax Act of 1964. ¹ His claim is that imposition of the tax upon the transactions involved constituted a violation of due process, in that the application of the tax to those transactions was retroactive. In the district court, following trial, judgment for the United States was entered. Purvis v. United States, 344 F.Supp. 785 (W.D.Wash.1972). This appeal was taken by the taxpayer.

On July 18, 1963, President Kennedy in a message to Congress ² proposed a series of coordinated actions to alleviate a serious balance of payments deficit. Included was an 'interest equalization tax' to be levied on purchases by Americans of foreign securities, the purpose being to restrict long term capital outflow from the United States by making it more expensive to borrow in the American market. The President in his message made it clear that if the tax was to achieve its purpose, it was essential that legislation creating the tax be made effective as of the date of the presidential message-- July 18, 1963. Otherwise a rush by investors to beat the deadline would serve to aggravate the problem and render the proposal self-defeating. ³

The President's message was well publicized in the newspapers and financial journals. The market in foreign securities was promptly affected. On the day of the message the Treasury Department issued documents giving details of the proposed tax. A 'Notice of Proposed Effective Date' with a description of the proposed Act was published in the Federal Register on August 16, 1963. The Act in substantially the form proposed by the President was signed into law September 2, 1964, with an effective date of July 18, 1963.

Plaintiff taxpayer, a resident of the State of Washington, had for many years invested in Canadian securities and maintained a margin brokerage account in the Victoria, British Columbia, office of a Canadian brokerage firm. Between July 18, 1963, and August 2, 1964, he purchased various Canadian stocks. The purchases were made through his Canadian account, to which no United States dollars were transferred during the period in question. Thus, although taxpayer purchased foreign securities during the period between the effective date and enactment-- the period of retroactive application-- he did not, during that period, contribute to outflow of capital from the United States.

In engaging in the stock purchases in question taxpayer knew of the President's message and of his desire for retroactive application, and the reason for that desire. He knew of nothing in the proposals that would exempt his transactions. He knew that the tax as proposed would cover foreign security purchases paid for with foreign funds of Americans. He joined with other investors in unsuccessful efforts to have the tax modified by Congress to exclude transactions not involving 'outflow.' ⁴

Taxpayer recognizes that modifications of income taxes have regularly been imposed retroactively, as discussed in Welch v. Henry, 305 U.S. 134, 59 S.Ct. 121, 83 L.Ed. 87 (1938). He insists, however, that the law is otherwise as to new and novel taxes upon transactions theretofore free from taxation. He relies upon decisions holding unconstitutional retroactive application of estate and gift taxes: Coolidge v. Long, 282 U.S. 582, 51 S.Ct. 306, 75 L.Ed. 562 (1931); Untermyer v. Anderson, 276 U.S. 440, 48 S.Ct. 353, 72 L.Ed. 645 (1928); Blodgett v. Holden, 275 U.S. 142, 48 S.Ct. 105, 72 L.Ed. 206 (1927); Nichols v. Coolidge, 274 U.S. 531, 47 S.Ct. 710, 71 L.Ed. 1184 (1927). Taxpayer concludes from these authorities and from the Court's discussion of the problem in Welch v. Henry, supra, that retroactivity can be sanctioned only if the tax is not imposed upon a voluntary act, or if the taxpayer is forewarned of retroactivity by the statute books themselves or by previous practices of Congress.

These contentions, with respect to this same tax, were advanced by a taxpayer and rejected by the Court of Claims in First National Bank in Dallas v. United States, 420 F.2d 725, 190 Ct.Cl. 400, cert. denied, 398 U.S. 950, 90 S.Ct. 1868, 26 L.Ed.2d 289 (1970). The court there stated that it could 'perceive no such rigid standard of constitutionality in the decided cases.' It further stated:

'We are guided, rather, by the more flexible criteria delineated by the Supreme Court in Welch v. Henry, supra, 305 U.S. at page 147, 59 S.Ct. at 126: * * * In each case it is necessary to consider the nature of the tax and the circumstances in which it is laid before it can be said that its retroactive application is so harsh and oppressive as to transgress the constitutional limitation. Accordingly, it is our view that where there is reasonable cause to believe or expect that a tax will be imposed upon a presently nontaxable transaction, the restrospective application of such tax does not constitute a denial of due process.'

420 F.2d at 730.

We agree with that view.

Taxpayer here seeks to distinguish First National Bank in Dallas in that in that case there had been an outflow of funds to Canada caused by the purchases of the taxpayer, while in this case there was none. Taxpayer asserts that while he did indeed have notice that Congress contemplated applying the tax to such cases (purchases made with funds already located abroad), he had no notice that the tax would be retroactively applied to such transactions. He protests that such notice as was given of the retroactive application of the Act was coupled with notice of the need for such application-- to prevent frustration of the tax's purpose by massive outflow of funds in response to a desire to beat the deadline. While he acknowledges, arguendo, the validity of Congress' justification for extending the tax to include foreign transactions with foreign funds (see note 4, supra), he insists that there was no need whatsoever to apply the tax retroactively to such transactions. Since the funds were already out of the country there obviously could be no need to rush to get them out of the country to beat any deadline and as to those funds there was therefore no need for retroactive application of the tax.

We may accept that there was no need. ⁵ We cannot agree, however, that lack of need was the same as lack of notice that the tax would be so applied. From the outset the public was on notice that the tax as defined was (by presidential exhortation, at least) to be retroactively imposed across the board. Never was there any reliable suggestion that it would become effective on different dates for different transactions depending upon the source of funds.

We conclude, as did the Court of Claims, that with the widespread notice given to the investing public it cannot be said that retroactive application of this tax was oppressive or harsh or confiscatory. With the undeniable need for retroactive application in general if the purpose of the tax was to be realized, it cannot be said that retroactive application of the tax was arbitrary or capricious. Since general retroactive application cannot be said to violate due process, we are satisfied that taxpayer had no constitutional right to have certain transactions carved out to be subjected to prospective application only.

Taxpayer makes a further argument which we feel warrants discussion. Notice, he insists, in order to suffice under Welch v. Henry, supra, must have been by the statute books themselves or by the practice of Congress. He points to language in Untermeyer v. Anderson, supra:

'The taxpayer may justly demand to know when and how he becomes liable for taxes-- he cannot foresee and ought not to be required to guess the outcome of pending measures. The future of every bill while before Congress is necessarily uncertain. The will of the lawmakers is not definitely expressed until final action thereon has been taken.'

276 U.S. at 445-446, 48 S.Ct. at 354.

Taxpayer contends that to give the President's request for retroactive application the effect of legislative notice is to put the investor on the horns of a dilemma since he cannot foresee whether Congress will grant the request or not. Further, he contends, to give such effect to the President's request is to countenance a violation of the principle of separation of powers.

However, it was not the act of the President that gave retroactive application to the tax measure. It was the action of Congress that did so. In United States v. Heinszen & Co., 206 U.S. 370, 27 S.Ct. 742, 51 L.Ed. 1098 (1907), and Mattingly v. District of Columbia, 97 U.S. 687, 24 L.Ed. 1098 (1878), the Court early recognized the power of Congress to ratify unauthorized Executive action taken in the area reserved to Congress, and thus retroactively to validate such action. We feel we can confidently leave to Congress, as a purely political matter, the control of such instances of interaction between the departments. If at any time the Congress feels the President to be overreaching in seeking to create legislative consequences from Executive proclamation or request, it can reject the request for retroactive application.

It is true that this uncertainty as to outcome-- as to whether certain transactions are to be taxed, and, if so, whether retroactively-- can create difficulties for an affected citizen attempting to order his life, business or property. Here again, however, we feel that the proper due process test is that stated in Welch: 'the nature of the tax and the circumstances in which it is laid'...