Arizona State Tax Commission v. Reiser

512 P.2d 16, 109 Ariz. 473, 1973 Ariz. LEXIS 386
CourtArizona Supreme Court
DecidedJuly 6, 1973
DocketNo. 10886-PR
StatusPublished
Cited by3 cases

This text of 512 P.2d 16 (Arizona State Tax Commission v. Reiser) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arizona State Tax Commission v. Reiser, 512 P.2d 16, 109 Ariz. 473, 1973 Ariz. LEXIS 386 (Ark. 1973).

Opinion

STRUCKMEYER, Justice.

This case comes to us on a petition for review of a decision of the Court of Appeals affirming a summary judgment for plaintiff-appellee, 16 Ariz.App. 374, 493 P.2d 920 (1972), as supplemented in 17 Ariz. App. 135, 495 P.2d 1342 (1972). The judgment of the Superior Court affirmed. Opinions of the Court of Appeals vacated.

Appellee, Castle O. Reiser, is employed by the Board of Regents of the Universities and State College of Arizona as a professor of engineering at Arizona State University. He executed annual nonrevocable written salary reduction agreements with the Regents for the fiscal years 1964-1965, 1965-1966, 1966-1967, and 1967-1968 (Appendix 1). The agreements called for the purchase of nonforfeitable annuities for the appellee by the Regents in the amount of the salary reductions. Nonforfeitable annuity contracts were purchased by the Regents pursuant to the agreements. All purchases of annuities were with funds contributed by Reiser pursuant to the agreements for a reduction in salary.

Appellee filed Arizona state income tax returns but did not report as income the [475]*475amounts of his reduced salary used by the Regents to purchase the annuities. The State Tax Commission notified him that it proposed to assess additional income taxes for the calendar years 1965, 1966 and 1967, with the explanation that the annuity payments were taxable as income under state law. Pursuant to A.R.S. § 43-177, subsec. f, Reiser brought this action in Superior Court as an appeal of the Tax Commission’s denial of his protest to a deficiency assessment. By count two of his amended complaint, he also sought declaratory relief as a class action, presumably pursuant to A.R.S. § 12-1831 et seq. The cause was submitted on stipulated facts with motions for summary judgments by both parties. The trial court granted appellee’s motion and denied the Commission’s motion. Since no point is made on appeal as to the propriety of joining a class action with an appeal from a Tax Commission order, we express no opinion either approving or disapproving the judgment as a judgment in a class action.

Two questions are presented, the first of which is whether payments made pursuant to salary reduction agreements, as here, are excluded from taxation as gross income under Arizona’s statute § 43-112, subsec. b, par. 6.

Section 43-112, subsec. b, par. 6 provides, insofar as germane to this question:

“ [I] f an annuity contract is purchased for an employee by an employer * * * the employee shall include in his income the amounts received under such contract for the year received. If the employee paid any of the consideration for the annuity, the annuity shall be included in his income * *

The quoted provision of § 43-112, subsec. b, par. 6 originated as Chapter 65, § 12(b)(6), Laws of 1954. It was derived from and is almost identical in language to the Federal Internal Revenue Code of 1939, as amended in 1942, § 22(b)(2)(B). See Revenue Act of 1942, ch. 619, § 162(c) (Oct. 21, 1942), 56 Stat. 866. Arizona derived its income tax statutes principally from the federal statutes, State Tax. Comm’n. v. Television Services, Inc., 108 Ariz. 236, 238, 495 P.2d 466, 468 (1972). Hence, in determining the meaning and intent of Arizona’s enactment, its historical background should be considered, cf. Mesa v. Killingsworth, 96 Ariz. 290, 295, 394 P.2d 410, 413 (1964).

The United States Senate Finance Committee, in reporting on the amendment of 1942 creating the exclusion in question, stated:

“If an annuity contract is purchased for an employee * * * , the employee will not be required to include in his income the amount paid by his employer for such annuity contract until he actually receives or there is made available to him the amounts required to be paid under the annuity contract, * * ” S. Rep. No. 1631, 77th Cong., 2d Sess. 141 (1942).

The Conference Report Statement of the House Managers adds little to this explanation, H.R.Rep. No. 2586, 77th Cong., 2d Sess. 52-53 (1942), and the Treasury Department Regulations issued shortly thereafter merely restated the Senate Finance Committee’s explanation, Treas.Reg. Ill, § 29.22(b) (2)-5 (1943), 8 Fed.Reg. 14899 and Treas.Reg. 103, § 19.22(b) (2) (B)-l (1943), T.D. 5278, Par. 5, 1943 Cum.Bull. 488. As an aside, it may be said that Congress’ enactment was designed to permit the taxation of certain corporate employees in a similar manner to those employees receiving benefits under retirement or pension plans.

As late as 1953, the Internal Revenue Service ruled:

“An amount paid by an employer * * * as an insurance premium for the purchase of an annuity contract of the type referred to in section 22(b)(2)(B) of the Code is not required to be included in the income of the employee for whom the annuity is purchased. The employee will be taxed upon the basis of the amounts he actual[476]*476ly receives under the annuity contract and at the time he receives such annuity payments.” Rev.Rul. 181, 1953-2 Cum. Bull. Ill (emphasis added).

It is therefore clear that at the time of the enactment of § 43-112, subsec. b, par. 6, the only condition for exclusion from taxation as gross income and deferment until the year of receipt was that the employer purchase the annuity contract on behalf of his employee at least insofar as there was a bona fide attempt to set up pension or retirement benefits.

Shortly after adoption by Arizona of the federal Act, the Internal Revenue Service published a ruling stating that it would not treat income withheld by an employer pursuant to salary reduction agreements as ex-cludable from the employee’s gross income.

“It is held that where annuities are purchased by an organization exempt from Federal income tax under section 101(6) of the Code for employees who, under the above circumstances, have requested that their salary payments be decreased by certain amounts and that such amounts be applied toward the purchase of annuity contracts, the inclusion in gross income of an employee of the amounts thus paid by the employer for the annuity contracts is not deferred until the year of receipt as provided in section 22(b) (2) (B) of the Code. Revenue Ruling 181, C.B. 1953-2, 111, relating to amounts contributed by the employer is not applicable to the circumstances expressed herein.” Rev.Rul. 54-267, 1954— 2 Cum. Bull. 59, declared obsolete, Rev. Rul. 72-92, 1972-1 Cum.Bull. 408.

The I.R.S. gave no explanation for the change in its ruling.

Two reasons have been advanced by appellant against allowing an exclusion for annuities purchased through salary reduction agreements: (1) that the annuities purchased are not “mere supplements” to income, and (2) that the funds used in the purchase are income constructively received by the employee.

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Bluebook (online)
512 P.2d 16, 109 Ariz. 473, 1973 Ariz. LEXIS 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arizona-state-tax-commission-v-reiser-ariz-1973.