Wis. Dep't of Taxation v. Miller

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtFOWLER
Citation239 Wis. 507,300 N.W. 903
Decision Date02 December 1941
PartiesWISCONSIN DEPARTMENT OF TAXATION v. MILLER.

239 Wis. 507
300 N.W. 903

WISCONSIN DEPARTMENT OF TAXATION
v.
MILLER.

Supreme Court of Wisconsin.

Dec. 2, 1941


Appeal from an order of the Circuit Court for Milwaukee County; Charles L. Aarons, Judge.

Affirmed.

Action by the Wisconsin Department of Taxation against Clara A. Miller, to review a decision of the Wisconsin Board of Tax Appeals. From an order of the circuit court for Milwaukee county reversing an order of the Board of Appeals, the defendant taxpayer appeals. The material facts are stated in the opinion.

Wood, Warner & Tyrrell, of Milwaukee (John K. Wood, and Kenneth F. Webster, both of Milwaukee, of counsel), for appellant.

John E. Martin, Atty. Gen., and Harold H. Persons, Asst. Atty. Gen., for respondent.


FOWLER, Justice.

The Assessor of Incomes of Milwaukee county imposed in 1932 an Emergency Relief Surtax against Clara A. Miller on her 1931 income. She paid this tax. Thereafter in proceedings duly had an additional tax of $1,763.09 was imposed by the Assessor. This tax was also paid. The taxpayer filed with the Assessor a petition for a refund of these payments. The Assessor denied the refund. The taxpayer appealed to the Wisconsin Board of Tax Appeals. The Board reversed the order of the Assessor and ordered a refund. The Wisconsin Department of Taxation brought action under sec. 73.015(2), Stats., in the circuit court for Milwaukee county to review the order of the Board. The circuit court reversed the order of the Board and sustained both taxes imposed by the Assessor of Incomes. The case is an appeal from the circuit court order.

The facts are stipulated. They are in part summarized as follows: During the year 1931 the taxpayer owned securities worth somewhere between one and three million dollars. During that year she made many changes in her invested securities selling some and purchasing others. The total volume of such manipulations involved purchases and sales aggregating respectively $765,306.89 and $340,536.55. Her purpose in so manipulating her securities was to better her holdings and thus to increase her income. In this sense it was, as she claims, to make money. On the basis of differences between purchase and sales prices of securities sold during the year, her losses exceeded her gains in the aggregate of $81,141.87. She claims she is entitled to deduct this sum from the tax base upon which her Emergency Relief Surtax was computed. She was allowed such deduction from her regular income tax base. Whether she is entitled to such deduction, in computing the tax involved, depends on the meaning of the statute imposing that tax.

The validity of the statute imposing the tax involved is not in question. The only

[300 N.W. 904]

question involved is whether under par. (b) of sec. 4(2) of Ch. 29, Laws of Special Session 1931-1932, the provisions of the general income tax law relating to “gains or losses on the sale or disposition of stocks, bonds and other securities” is applicable. Par. (b) declares that the provision relating to such “gains or losses” shall not be applicable “unless the property is held by the taxpayer in the course of his regular trade or business.”

[1][2] It seems to us that whether the judgment of the circuit court should be affirmed may be based on an item of the stipulated facts. Attached...

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4 practice notes
  • Milwaukee County v. Schmidt, Nos. 91
    • United States
    • United States State Supreme Court of Wisconsin
    • June 25, 1971
    ...long continued, substantially uniform and without challenge by government authorities and courts. Department of Taxation v. Miller (1942), 239 Wis. 507, 300 N.W. 903, 2 N.W.2d 362. In this case the administrative construction was not long continued and met with immediate challenge by the co......
  • Cudahy v. Wisconsin Dept. of Taxation
    • United States
    • United States State Supreme Court of Wisconsin
    • March 4, 1952
    ...from income from intangibles and cite Tyson v. Department of Taxation, II W.B.T.A. 380; Department of Taxation v. Miller, 1942, 239 Wis. 507, 300 N.W. 903, 2 N.W.2d 362; and Higgins v. Commissioner, 1941, 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783, in support of such In the instant case there......
  • Rosenak v. Poller, No. 15623.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 11, 1961
    ...— or should have been realized — after deducting legitimate expenses. See, e. g., Wisconsin Department of Taxation v. Miller, 1942, 239 Wis. 507, 300 N.W. 903, 2 N.W.2d 362, 363; cf. Collins v. Treat, 1930, 108 W.Va. 443, 152 S.E. 205,...
  • Wis. Dep't of Taxation v. Miller
    • United States
    • United States State Supreme Court of Wisconsin
    • February 10, 1942
    ...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. Web......
4 cases
  • Milwaukee County v. Schmidt, Nos. 91
    • United States
    • United States State Supreme Court of Wisconsin
    • June 25, 1971
    ...long continued, substantially uniform and without challenge by government authorities and courts. Department of Taxation v. Miller (1942), 239 Wis. 507, 300 N.W. 903, 2 N.W.2d 362. In this case the administrative construction was not long continued and met with immediate challenge by the co......
  • Cudahy v. Wisconsin Dept. of Taxation
    • United States
    • United States State Supreme Court of Wisconsin
    • March 4, 1952
    ...from income from intangibles and cite Tyson v. Department of Taxation, II W.B.T.A. 380; Department of Taxation v. Miller, 1942, 239 Wis. 507, 300 N.W. 903, 2 N.W.2d 362; and Higgins v. Commissioner, 1941, 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783, in support of such In the instant case there......
  • Rosenak v. Poller, No. 15623.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 11, 1961
    ...— or should have been realized — after deducting legitimate expenses. See, e. g., Wisconsin Department of Taxation v. Miller, 1942, 239 Wis. 507, 300 N.W. 903, 2 N.W.2d 362, 363; cf. Collins v. Treat, 1930, 108 W.Va. 443, 152 S.E. 205,...
  • Wis. Dep't of Taxation v. Miller
    • United States
    • United States State Supreme Court of Wisconsin
    • February 10, 1942
    ...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......

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