Carter v. Hill

31 Haw. 264, 1930 Haw. LEXIS 47

• Court: Hawaii Supreme Court
• Decided: February 8, 1930
• Docket: No. 1830.
• Status: Published

Opinions

OPINION OF THE COURT BY

BANKS, J.

(Parsons, J., dissenting.)

This is an income tax case and is before ns on agreed facts. The primary question involved is whether Helen Strong Carter, referred to as the taxpayer, was under the agreed facts required by our income tax statute to pay a tax during the taxation period of 1926 on her income derived from certain holdings owned by her but actually and physically located in the State of New York. The income upon which the Territory claims the taxpayer was legally bound to pay the statutory tax was derived as dividends on shares of stock of the Eastman Kodak Company, a corporation organized under the laws of New Jersey, and as interest on state bonds and municipal bonds of mainland cities, and as interest on Liberty bonds and on Federal farm loan bonds, and as interest on deposits in the Bankers’ Trust Company of NeAV York City, New York, and as income from her undivided proportionate share of the H. A. Strong estate held in trust by the Security Trust Company of Rochester, NeAV York.

All of the foregoing stocks, bonds and securities Avere given to the taxpayer by the Avill of her father who was a resident of the State of New York, or were otherwise received by her from sources on the mainland of the United States and none of the certificates representing said stocks and said bonds and securities have ever been physically present in the Territory of Hawaii, nor has any portion of the bank deposits in the Bankers’ Trust Company or any portion of the trust estate created by the will of her father ever been in the Territory of Hawaii.

On the 8th of September, 1922, the taxpayer executed and delivered to one Henry D. Quinby, then residing in NeAV York City, New York, an instrument in writing by AAdiicli she created and constituted the said Quinby as her attorney in fact. The powers conferred upon Quinby Avere plenary and authorized him both specifically and generally to do and perform every and any act or thing AAThatsoevur in connection Avith the management and control of her business affairs that the grantor could herself do and perform. This power of attorney has never been revoked and Quinby has ever since its execution continued to act under it.

The stocks, bonds and securities from Avhich the income in question Avas derived Avere and still are in the actual custody of Quinby in the city of New York, as the taxpayer’s attorney in fact, and acting under his powers as such attorney in fact he has received and receipted for and still receives and receipts for the dividends and interest paid on said stocks and bonds and securities and has also received and receipted for and still receives and receipts for the interest paid on the bank deposits with the Bankers’ Trust Company and the taxpayer’s proportion of the income from the trust estate created by her deceased father. All of these realizations are deposited by Quinby with the Guaranty Trust Company in an account entitled “Helen Strong Carter Custodian Account,” and, with the exception of the monthly amount of five thousand dollars, are under Quinby’s control and disposition. This amount of five thousand dollars is paid each month from the custodian account into a separate individual checking account in the Guaranty Trust Company in themame of Helen Strong Carter. The taxpayer has a right to draw on the custodian account but has never exercised the right without notifying Quinby. This account is managed exclusively by Quinby, who under his power of attorney draws on it and instructs the Guaranty Trust Company as to all matters concerning it. With the exception of the monthly sums of five thousand dollars and also with the exception of moneys which have recently been sent to the taxpayer for the purchase of property in Nuuanu Yalley in the city of Honolulu on which to erect a home and for the construction of a dwelling on said property and also with the exception of moneys which Avent into the Strong Foundation Dental Infirmary of Honolulu and with the exception of moneys to cover the payment of Federal income taxes, said Federal income taxes being paid on the taxable income from all sources including income received by said Quinby as said attorney in fact and with the exception of- moneys for other very specific purposes no portion of the income from the sources aboAre enumerated has ever come to the Territory of HaAvaii and none of the funds which have been remitted to the Territory of Hawaii by Quinby have been returned by the taxpayer in her territorial income tax return nor have territorial income taxes been paid on the same.

Except for the remittances above mentioned, made to the taxpayer, and except for special gifts on the mainland of the United States and elsewhere, as, for example, a memorial to Helen Strong Carter’s parents in Roches-' ter, New York, for which the taxpayer gave $500,000, the last installment of which was paid in 1927 by Qninby, all of the moneys placed to the account of the Helen Strong Carter Custodian Account have been used to build up a million dollar fund so as to be prepared to pay the estate and inheritance taxes of Helen Strong Carter on her death. This fund has now been completed but Quinby will continue in the exclusive possession, control, custody and management of the stocks, bonds and securities and the income derived therefrom.

Ever since Quinby’s appointment as the taxpayer’s attorney in fact he has, in pursuance of the powers specifically conferred upon him, exercised the fullest control over her holdings in New York; he has collected the income from these holdings; has borrowed large sums of money, using them as security; has repaid money so borrowed; has made investments, and in short has done everything in connection with these holdings that the taxpayer herself could have done.

The taxpayer claims that under the foregoing facts and the territorial income tax law she is not required to pay a tax on the income derived from the stocks, bonds and other securities held by Quinby under his power of attorney nor on the interest on the bank deposits with the Bankers’ Trust Company nor on the income from the trust estate created by her father. The tax assessor takes the opposite position. Our income tax statute (Sec. 1388, R. L. 1925), so far as it relates to individuals, is as follows : “There shall be levied, assessed, collected and paid annually upon the gains, profits and income received by every individual residing in the Territory, from all prop erty owned, and every business, trade, profession, employment or vocation carried on in the Territory, and by every person residing without the Territory, from all property owned, and every business, trade, profession, employment or vocation carried on in the Territory, and by every servant or officer of the Territory or any political subdivision thereof, wherever residing, a tax in accordance with the following schedule on the amount so received during the taxation period as herein defined:” (The schedule which follows is unimportant in the instant case and need not be quoted.)

In order to bring more clearly to vieAV the first question presented for our consideration Ave will requote the statute, omitting all unnecessary portions. Thus requoted the statute is: “There shall be levied, assessed, collected and paid annually upon the * * * income received by every individual, residing in the Territory from all property owned * * * in the Territory * * * a tax in accordance with the following schedule on the amount so received during the taxation period as herein defined.”

It is contended by the tax assessor that the phrase “from all property owned * * * in the Territory” refers to the residence of the individual who OAvns the property from which the income is received and not to the location of the property itself. Agreement with this contention Avould require the statute to be interpreted as though it read, “There shall be levied, assessed, collected and paid annually a tax upon the income received by every individual who resides in the Territory from all property OAvned by him regardless of its location.”

The taxpayer concedes that if this were the true meaning of the statute she would have no ground upon which to contest the payment of the tax. In other words, she concedes (whether properly or improperly Ave need not now decide) that it is within the power of the legislature to impose a tax upon every person domiciled within the Territory on income received from all property, whether such property be located within or without the Territory. She earnestly contends, however, that it is evident from the language of the statute that it was the intention of the legislature to require individuals residing in the Territory to pay a tax on income derived solely from property located in the Territory and therefore the power to require the payment of a tax on income from property located elsewhere was not exercised. More specifically, her contention is that the words “property owned * * * in the Territory,” as they appear in the statute, refer to the situs of the property and not to the domicile of the owner.

We think there is no doubt that this is the true meaning of the statute. In Ewa Plantation v. Wilder, 26 Haw. 299, the taxpayer contended for a similar construction and so convinced were counsel for the tax assessor (including both special counsel and the attorney general) of its correctness that they conceded the point. It is true that the court expressed some doubt of the tax assessor’s position but nevertheless accepted the concession, and while the decision was against the taxpayer it was, as we shall presently see, based on other grounds.

The soundness of our interpretation of the statute is made manifest when its provisions, so far as they relate to nonresidents, are considered. In this connection, omitting impertinent words, the statute provides: “There shall be levied, assessed, collected, and paid annually upon the * * * income received * * * by every person residing without the Territory from all property owned * * * in the Territory * * * a tax in accordance with the following schedule on the amount so received during the taxation period as herein defined.” If the contention of the tax assessor, that the words “property owned * * * in the Territory” mean, so far as they relate to residents, property owned by the individual who is domiciled in the Territory and do not mean property located in the Territory should prevail the same meaning would have to be given to these words in their relation to nonresidents. In that event the conclusive answer of a nonresident, who owns property in the Territory from which he derives income, to an income tax assessment, would obviously be, “I am not a resident in the Territory and therefore the property from which my income is derived is not owned there but in the place of my residence.” The legislature certainly never intended to bring about any such result.

Insisting that her construction of the statute is the correct one, the taxpayer does not go so far as to claim, as Avas done by the taxpayer, without success, in Ewa Plantation v. Wilder, supra, that the property yielding the income must be actually and physically in the Territory in order to subject the owner to the tax. Recognizing the authority of the Ewa case she concedes that if under the maxim mobilia sequuntur personam the property is constructively Avithin the Territory it would be sufficient. This brings us to the ultimate question in the case, namely, whether the maxim is applicable under the agreed facts before us.

Under this classic rule of the common law movable property has with great frequency been held to follow the peregrinations of the owner and to be subject to the law of the owner’s domicile although actually located elseAvhere. This legal fiction, however, has not governed under all circumstances. In many instances it has been obliged to yield to the actual situs of the property. In Pullman’s Palace Car Co. v. Pennsylvania, 141 U. S. 18, 22, the court said: “The old rule expressed in the maxim mobilia sequuntur personam, by Avhich personal property was regarded a.s subject to the law of the owner’s domicil, grew up in the middle ages, when movable property consisted chiefly of gold and jewels which could be easily carried by the owner from place to place or secreted in spots known only to himself. In modern times, since the great increase in amount and variety of personal property, not immediately connected with the person of the owner, that rule has yielded more and more to the lex situs, the law of the place where the property is kept and used.” Again, in Liverpool, etc., Ins. Co. v. Orleans Assessors, 221 U. S. 346, the court, speaking through Mr. Justice Hughes, said (p. 354) : “The legal fiction, expressed in the maxim mobilia sequuntur personam, yields to the fact of actual control elsewhere.” In Ewa Plantation v. Wilder, supra, the court, in speaking of this maxim, said: “The maxim, however, is not of universal application and may yield to the exigencies of particular circumstances.”

It is the contention of the taxpayer that under the agreed facts her holdings, from which the income in question was derived, are so permanently located and completely controlled in New. York that they have a settled business situs in that State and are therefore beyond the influence of the doctrine embodied in the maxim mobilia sequuntur personam and cannot be regarded as property having its situs in the Territory of Hawaii, Avhere she resides.

In support of her contention the taxpayer calls our attention to the case of DeGanay v. Lederer, 250 U. S. 376, the decision in which, having been rendered by the highest court in the land, she claims is conclusive of the instant case. Mrs. DeGanay’s holdings from which her income was derived were actually and physically located in Pennsylvania and were under the management and control of the Pennsylvania Company, acting under a power of attorney no more specific and comprehensive in its delega tion of authority than is that under which the taxpayer’s agent in the instant case acted. Under a Federal statute which provided that a tax “shall be assessed, levied, collected and paid annually upon the entire net income from all property owned * * * in the United States by persons residing elsewhere” the taxpayer sought immunity from the tax on the ground that under the maxim mobilia seqnuntnr personam the property from which her income was derived had its situs in the country of her domicile and citizenship and not in the United States. The property owned by the taxpayer consisted of stocks and bonds of corporations organized under the laws of the United States and of mortgages that were secured upon property in Pennsylvania. It possessed essentially the same characteristics as the property owned by the taxpayer in the present case. In declining to adopt Mrs. DeGanay’s view of the situs of the property the court said (pp. 380-383) : “The question submitted comes to this: Is the income from the stock, bonds and mortgages, held by the Pennsylvania Company, derived from property owned in the United States ? A learned argument is made to the effect that the stock certificates, bonds and mortgages are not property, that they are but evidences of the ownership of interests which are property; that the property, in a legal sense, represented by the securities, would exist if the physical evidences thereof were destroyed. But we are of opinion that these refinements are not decisive of the congressional intent in using the term ‘property’ in this statute. Unless the contrary appears, statutory words are presumed to be used in their ordinary and usual sense, and with tlie meaning commonly attributable to them. To the general understanding and with the common meaning usually attached to such descriptive terms, bonds, mortgages, and certificates of stock are regarded as property. By state and federal statutes they are often treated as .property, not as mere evidences of the interest' Avhich they represent. In Blackstone v. Miller, 188 U. S. 189, 206, this court held that a deposit by a citizen of Illinois in a trust company in the City of NeAV York Avas subject to the transfer tax of the State of NeAV York and said: ‘There is no conflict betAveen our vieAvs and the point decided in the case reported under the name of State Tax on Foreign Held Bonds, 15 Wall. 300. The taxation in that case Avas on the interest on bonds held out of the State. Bonds and negotiable instruments are more than merely evidences of debt. The debt is inseparable from the paper Avhich declares and constitutes it, by a tradition Avhich conies doivn from more archaic conditions. Bacon v. Hooker, 177 Massachusetts, 335, 337.’ The Court of Appeals of Neiv York, recognizing the same principle, treated such instruments as property in People ex. rel. Jefferson v. Smith, 88 N. Y. 576, 585: ‘It is clear from the statutes referred to and the authorities cited and from the understanding of business men in commercial transactions, as Avell as of jurists and legislators, that mortgages, bonds, bills and notes have for many purposes come to be regarded as property and not as the mere evidences of debts, and that they may thus have a situs at the place Avhere they are found like other visible, tangible chattels.’ We have no doubt that the securities, herein involved, are property. Are they property within the United States? It is insisted that the maxim molnlia sequuntur personam applies in this instance and that the situs of the property Avas at the domicile of the OAvner in France. But this court has frequently declared that the maxim, a fiction at most, must yield to the facts and circumstances of cases which require it; and that notes, bonds and mortgages may acquire a situs at a place other than the domicile of the owner, and be there reached by the taxing authority. It is only necessary to refer to some of the decisions of tliis court.” (Citing Cases) “Shares of stock in national banks, this court has held, for the purpose of taxation may be separated from the domicile of the owner, and taxed at the place where held. Tappan v. Merchants’ National Bank, 19 Wall. 490. In the case under consideration the stocks and bonds were those of corporations organized under the laws of the United States, and the bonds and mortgages were secured upon property in Pennsylvania. The certificates of stock, the bonds and mortgages were in the Pennsylvania Company’s offices in Philadelphia. Not only is this so, but the stocks, bonds and mortgages were held under a power of attorney which gave authority to the agent to sell, assign, or transfer any of them, and to invest and reinvest the proceeds of such sales as it might deem best in the management of the business and affairs of the principal. It is difficult to- conceive how property could be more completely localized-in the United States. There can be no question of the power of Congress to tax the income from such securities. Thus situated and held, and with the authority given to the local agent over them, we think the income derived is clearly from property within the United States within the meaning of Congress as expressed in the statute under consideration.”

It will be observed that the DeGanay case presents the question before us on its obverse- side, that is to say, the taxpayer, Emily DeGanay, who was a resident and citizen of Prance, sought to escape the tax imposed by the Federal statute by invoking the doctrine embodied in the maxim mobilia sequuntur personam, whereas, in the instant case, the Territory invokes the maxim for the purpose of bringing the taxpayer’s property within the situs of her domicile and thus subjecting it to the tax imposed by our statute. We think, however, that the difference in the situation of the parties in the two cases does not destroy or weaken the influence of the DeGanay case. The subject of inquiry in the DeGanay case was the same as that in the instant case, namely, the situs of the taxpayer’s property. In the DeGanay case it was held to be in Pennsylvania and therefore the tax imposed by the Pederal statute on the income derived from it must be paid. Under agreed facts that are so similar to those in the DeGanay case as to be indistinguishable from them we •feel hound by that case to hold that the situs of the taxpayer’s property is New York and therefore she is not required by our statute to pay the tax on the income derived from it. It cannot be said to have at one and the same time a dual situs — one actual and the other fictional. If it is so permanently located and controlled in New York as to give it a business situs there it would he a manifest legal solecism to say it also had a constructive situs in Hawaii under the maxim mobilia seqmmtur personam. To so hold would, if New York had an income tax statute identical with ours relating to nonresidents, subject the taxpayer to a tax there on the theory that her property was actually located in that jurisdiction and also subject her to a tax in Hawaii on the theory that under the maxim mobilia sequuntur personam her property was located in this jurisdiction- — the place of her domicile. It was in condemnation of such an unjust and irrational result that the Supreme Court of the United States said in Safe Deposit & Trust Co. v. Virginia, 280 U. S. 83, 92: “Ordinarily this court recognizes that the fiction of mobilia sequuntur personam may be applied in order to determine the situs of intangible personal property for taxation. Blodgett v. Silberman, 277 U. S. 1. But the general rule must yield to established fact of legal ownership, actual presence and control elsewhere, and ought not to he applied if so to do would result in inescapable and patent injustice, whether through double taxation or otherwise.” •The court also said (p. 94) : “It Avould be unfortunate, perhaps amazing, if a legal fiction originally invented to prevent personalty from escaping just taxation, should compel us to accept the irrational vieAV that the same securities Avere Avitliin tAVO States at the same instant and because of this to uphold a double and oppressive assessment.”

Our attention is draAvn to a very recent case (Farmers’ Loan & Trust Co. v. Minnesota) decided by the Supreme Court of the United States on January 6, 1930, and appearing in the advance sheets but not yet published in the official reports. We refer to this case not because on its facts it is similar to the case at bar but because in the course of its opinion the court made some observations Avhich Ave think are both significant and pertinent. It appears from the statement of facts that Henry R. Taylor, Avhile domiciled and residing in NeAV York, died testate on December 4, 1925. He had long oAvned and kept Avitliin that State negotiable bonds and certificates of indebtedness issued by the State of Minnesota and the cities of Minneapolis and St. Paul, Avorth about $300,000. Some of these Avere registered, others Avere payable to bearer. None had any connection Avith the business carried on by or for the decedent in Minnesota. All passed under his Avill, Avhich Avas probated in NeAV York. There also his estate Avas administered and a tax exacted upon the testamentary transfer. Minnesota assessed an inheritance tax upon the same transfer. Her supreme court approved this and upheld the validity of the authorizing statute, not, of course, on the theory of the doctrine of mobilia sequuntur personam, but on the theory that the bonds and certificates of indebtedness Avere the obligations of Minnesota and her municipal corporations and therefore the OAvner must invoke the laAvs of that State to enforce them. In reversing the Minnesota court the Supreme Court of the United States said: “Four different views concerning the situs for taxation of negotiable public obligations have been advanced. One fixes this at the domicile of the owner; another at the debtor’s domicile; a third at the place where the instruments are found — physically present; and the fourth within the jurisdiction where the owner has caused them to become integral parts of a localized business. If each State can adopt any one of these and tax accordingly, obviously, the same bonds may be declared present for taxation in two, or three, or four places at the same moment. Such a startling possibility suggests- a wrong premise.” From this language we think the conclusion is inescapable that the court intended to express its disapproval of any view of the law under which intangible securities could at the same moment have for taxation purposes a dual situs.

We infer from the tax assessor’s brief and from what was said in his behalf in oral argument that he thinks Ewa Plantation v. Wilder, supra, is more nearly like the instant case than is DeGanay v. Lederer, supra, and therefore should control. We cannot agree with this. The Ewa case, in which the rule expressed in mobilia sequuntur personam was applied, is so dissimilar in- its facts to the instant case that it cannot be regarded as authority in support of the tax assessor’s contention. In the Ewa case the agent of the taxpayer at San Francisco had authority only to purchase and hold mainland securities and to place the income derived from them on deposit to be drawn upon by the taxpayer at its domicile as it was needed for the payment of the current expenses of its plantation and for the payment of dividends upon its stock. The taxpayer’s agent in that case had no such plenary powers over the property of its principal as has the taxpayer’s agent in the instant case over the property of his principal. It was on this ground that the Ewa case Avas distinguished by this court and by tbe court of appeals of tlie ninth circuit (289 Fed. 664) from the DeGanay case, which case, as we have observed, is strikingly similar in its facts to the instant case. Speaking on this subject this court said (p. 311) ; “It is worthy of note that in the DeGanay case the court emphasized the fact that the stocks, bonds and mortgages were held in Pennsylvania under a power of attorney which gave authority to the agent to sell, assign and transfer any of them and to invest and reinvest the proceeds of sale as it might deem best in the management of the business and affairs of the principal. No such situation exists in the cases at bar. The mainland agents of the taxpayers were apparently clothed only with authority to purchase and hold the securities and as the income thereon was received to place the same to the credit of their principals to be drawn upon from time to time as money was required for the payment of the expenses of their plantations and dividends upon their stock. These securities therefore were not localized nor did' they enjoy a business situs such as is referred to in the DeGanay case.” Speaking on the same subject the court of appeals said (p. 669) : “In that case” (referring to the DeGanay case) “the significant facts were that the stocks and bonds were in the hands of a local agent empowered to sell and dispose of them or any of them according to his own judgment, to reinvest at his discretion, to hold the same for the owner’s account, and to represent the owner and manage generally the owner’s business affairs. In the case at bar there was no such localization of the property. The agent at San Francisco had authority only to purchase and hold the securities and to place the income on deposit, to be drawn upon, not by Castle & Cooke at Honolulu, but by the plaintiff in error at its domicile, as required for the payment of the current expenses of its plantation and dividends upon its stock.”

Neither can we agree with the tax assessor that we should decide the present case in accordance with the decision in Maguire v. Trefry, 253 U. S. 12. In that case a citizen of Massachusetts was the beneficiary of a trust whereby she was to receive income from securities located in Philadelphia. It was held that under the maxim mobilia sequuntur personam the income was taxable in the State of the beneficiary’s domicile. In the course of its opinion the court said (pp. 15, 16) : “At the last term we held in DeGanay v. Lederer, 250 U. S. 376, that stocks and bonds issued by domestic corporations, and mortgages secured on domestic real estate, although owned by an alien nonresident, but in the hands of an agent in this country with authority to deal with them were subject to the Income Tax Law of October 3, 1913, 38 Stat. 166. In the present case we are not dealing with the right to tax securities which have acquired a local situs, but are concerned with the right of the State to tax the beneficiary of a trust at her residence, although the trust itself may be created and administered under the laws of another State.”

Unlike the Maguire case, and unlike the Eiva case to which the Maguire case Avas applied, but exactly like the DeGanay case, we are dealing with the right of the tax assessor under our statute to impose an income tax on a taxpayer whose property consists of intangible securities having a business situs in a jurisdiction foreign to that in which she is domiciled. The distinction between the Maguire case and the DeGanay case is clearly pointed out in the opinion rendered in the Maguire case. In that opinion there is no suggestion that the DeGanay case was wrongly decided. In other Avords, there is no suggestion that intangible securities by their very nature are incapable of acquiring a situs other than the domicile of the owner. That they may acquire such situs is recognized in Farmers’ Loan & Trust Co. v. Minnesota, supra. There the court said: “New Orleans v. Stempel, 175 U. S. 309, Bristol v. Washington County, 177 U. S. 133, Liverpool, etc., Ins. Co. v. Orleans Assessors, 221 U. S. 346, recognize the principle that dioses in action may acquire a situs for taxation other than at the domicile of their owner if they have become integral parts of some local business.”

In Safe Deposit & Trust Co. v. Virginia, supra, the court thought, as shown by the portions of the opinion herein previously quoted, that it would be an unjust rule that would permit intangible property to be twice taxed on inconsistent theories. In that case the State of Virginia levied a property tax on the corpus of a trust estate which consisted of stocks and bonds of sundry corporations which were definitely and permanently located and under the control of a trustee in the State of Maryland and were there taxable. The supreme court of Virginia held that inasmuch as the beneficiaries of the estate lived in Virginia the property, consisting as it did of intangible securities, was, under the maxim mobilia sequuntur personam, likewise located in Virginia and was there taxable. The Supreme Court of the United States disagreed with this conclusion and reversed the Virginia court, holding that the corpus of the estate having its actual situs in Maryland could not at the same time, under the maxim mobilia sequuntur personam, have a situs in Virginia and that, Virginia having no constitutional authority to lay a tax on property located outside its own borders, the assessment in question was invalid. The case therefore is not authority for the tax assessor’s contention that under the doctrine of mobilia sequuntur personam the taxpayer’s property in the instant case is to be regarded as having its situs in the Territory of her domicile.

Blodgett v. Silberman, 277 U. S. 1, also relied on by the tax assessor, is not in conflict with this view. In that case the court was dealing with the right of the State of Connecticut to impose a succession tax on the transfer of intangible property (choses in action) that had its actual physical location beyond the domicile of the decedent. The court, applying the rule expressed in the maxim mobilia sequuntur personam, held that the sitios of the property was at the domicile of the owner and therefore the tax must be paid. In that case, however, the property in question was not under the control of an agent at the place of its location as was the property in the DeGanay case and as is the property in the instant case. We think this fact alone is sufficient to distinguish the Blodgett case from the present case, as it was sufficient in the opinion of this court and in the opinion of the court of appeals to distinguish the Ewa case from the DeGanay case. The DeGanay case was not even mentioned in the Blodgett case and no doubt for the reason that the court-considered that it was dealing with an entirely different situation.

H. L. Wrenn and A. G. M. Robertson (Prosser, Anderson & Marx and Robertson c£ Castle on the briefs) for the taxpayer. H. T. Kay, First Deputy Attorney General (H. R. Hewitt, Attorney General, with him on the briefs), for the tax assessor.

The DeGanay case has never been overruled and we therefore consider it binding on this court. A judgment in favor of the taxpayer will be signed upon presentation.