Wis. Dep't of Taxation v. Miller
| Decision Date | 10 February 1942 |
| Citation | 2 N.W.2d 362,239 Wis. 507 |
| Parties | WISCONSIN DEPARTMENT OF TAXATION v. MILLER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Milwaukee County; Charles L. Aarons, Judge.
On motion for rehearing.-[By Editorial Staff.]
Motion denied.
For former opinion, see 300 N.W. 903.
John E. Martin, Atty. Gen., and Harold H. Persons, Asst. Atty. Gen., for respondent.
Wood, Warner & Tyrrell, John K. Wood, and Kenneth F. Webster, all of Milwaukee, for appellant.
A rehearing is asked because, as is claimed: (1) The opinion is based upon a single item of the stipulated facts contained in captions stating that if the taxpayer is held by the court to have been “a dealer in securities” a stated amount paid as tax should be refunded, and if held not to be such “dealer” an additional tax of a stated amount was due from her. See captions - 300 N.W. 904. (2) The opinion erroneously states that the constitutionality of the statute involved is not in issue, and the court failed to pass upon its constitutionality. See bottom 2d column, 300 N.W. 903.
(1) That the court gave to the phrase “dealer in securities” in the caption a broader meaning than did the taxpayer may be true. But it does not follow that the court based its decision solely upon its interpretation of the meaning of that term in the caption. On the contrary it seems clear from the opinion that the court considered the facts relating to the method of the taxpayer's handling of her securities and the extent of the attention she gave to the handling of them. It is also clear that the court considered that this method and attention did not constitute her one conducting a business as a “dealer in securities” and that one must be such in order to be entitled to exclusion from the emergency tax statute as one who holds property “in the course of his regular trade or business.” This appearing, the decision must stand regardless of what the taxpayer considered the phrase “dealer in securities” in the caption to mean. What the words of the statute mean is what rules the decision of the point under consideration, not what the phrase in the caption means. What the statute means is a matter of law for the court to determine.
(2) The statement in the opinion that the constitutionality of the statute was not involved was based upon the fact that the taxpayer conceded that if she was not engaged in conducting a “trade or business” within the meaning of par. (b) of the statute, Laws 1931-32, Sp.Sess., c. 29, § 4(2), she owed an additional tax of $1,000 plus. If par. (b) were unconstitutional she would not of course be owing any additional tax. The inference that constitutionality was not involved was aided by the ruling that the statute comprising par. (b) is valid in the Van Dyke case, ...
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