Maryland National Bank v. Comptroller of the Treasury

287 A.2d 291, 264 Md. 536, 1972 Md. LEXIS 1169

• Court: Court of Appeals of Maryland
• Decided: February 17, 1972
• Docket: [No. 221, September Term, 1971.]
• Status: Published

Opinions

Singley, J.,

delivered the opinion of the Court. Barnes, McWilliams and Digges, JJ., dissent and Barnes, J., filed a dissenting opinion in which McWilliams and Digges, JJ., concur at page 543 infra.

Once again, we are called upon to construe the revision of Maryland’s income tax law, enacted by Ch. 142 of the Laws of 1967, Maryland Code (1957, 1969 Repl. Vol.) Art. 81, §§ 279-323A, which substantially changed the prior law and became effective 1 July 1967 but was intended to reach income received after 31 December 1966. In Katzenberg v. Comptroller, 263 Md. 189, 282 A. 2d 465 (1971), we concluded that the income tax law was not impermissibly retroactive when it taxed capital gains, recognized subsequent to the effective date of the law, although generated by agreements for an installment sale of capital assets entered into prior to the effective date. Here, the question is whether the accumulated and undistributed net income of a trust estate, resulting from a gain on the sale of capital assets, and held for the benefit of contingent and therefore unascertained beneficiaries, is taxable to the trustee under Art. 81, § 313.

The factual background of the controversy is refreshingly simple. Leslie A. Smelser died domiciled in Carroll County, Maryland, in 1944. By the terms of his will, he left the residue of his estate to The Fidelity Trust Company, now Maryland National Bank (the Trustee) as trustee, to pay the income to Mrs. Smelser for Jife, then to his son, Herbert, if living at the death of Mrs. Smelser, until Herbert reached 35 years of age, subject, however, to the provision that Herbert was to receive one-half of the principal upon attaining the age of 30 years. In the event of Herbert’s death before the termination of the trust, Herbert’s share was to be distributed to his descendants. If Herbert left no descendants, one-third of Herbert’s share was to be distributed to Herbert’s wife, and the balance of Herbert’s share, or all of Herbert’s share, if Herbert left no wife surviving, was to be held in trust for the benefit of Cora C. Stouffer, Mr. Smelser’s sister, for life. On the death of the sister, or on Mrs. Smelser’s death, she having survived the sister, the principal of the trust estate was to be distributed among those persons who would have been entitled thereto had Mr. Smelser survived his sister and his wife and died intestate.

Herbert predeceased his father and died leaving neither a wife nor any surviving descendant. Mr. Smelser’s sister died in 1948. As a consequence, the ultimate takers are Mr. Smelser’s next of kin, whose identity cannot be ascertained until the death of Mrs. Smelser.

In the calendar year 1967, the Trustee recognized a gain from the sale of capital assets in the amount of $1,173.66, which was added to the principal of the trust. If the gain is taxable, the Maryland income tax attributable thereto is $11.71. The Trustee disclosed the gain on its 1967 Maryland Fiduciary Return, but paid no tax, on the theory that the undistributed income was being held for the benefit of nonresidents of Maryland.

The Comptroller disagreed with the Trustee’s interpretation, and assessed a tax of $11.71, which, on appeal to the Maryland Tax Court, was affirmed.¹ The Trustee then appealed to the Baltimore City Court, which affirmed the tax court. From the judgment entered in favor of the Comptroller, this appeal was taken.

The Trustee pins its hopes on Art. 81, § 313 (b), which provides:

“A fiduciary shall be liable for income tax only with respect to such portion of the income of the fiduciary estate as is accumulated and not paid, distributed, or credited to or for the benefit of a beneficiary thereof which undistributed income shall not, however, include any portion thereof which pursuant to the terms of a created trust or estate is required to be permanently set aside for a religious, educational or charitable organization or purpose, and provided further, that a fiduciary shall not he liable for any tax on income from intangible personal property held in this State, in trust, to pay the income for the time being to, or to accumulate or apply such income for the benefit of any nonresident of this State, or any corporation not doing business in this State. In computing the tax of a fiduciary the income and allowable deductions, respectively, of the fiduciary shall be that proportion of the income and allowable deductions, respectively, of the fiduciary estate for the taxable year, that the part of the net income of the fiduciary estate which is accumulated in such year, bears to the total net income of the fiduciary estate for such year.” (Emphasis supplied)

As a consequence, all income accumulated by a fiduciary is taxable unless it is accumulated for the benefit of a charity, a nonresident individual or a corporation not doing business in Maryland. The Trustee reads § 813 (b) in conjunction with the definition of the word “resident” which appears in Art. 81, § 279 (i) :

“ ‘Resident’ means an individual domiciled in this State on the last day of the taxable year, and every other individual who, for more than six months of the taxable year, maintained a place of abode within this State, whether domiciled in this State or not; but any individual who, on or before the last day of the taxable year, changes his place of abode to a place without this State, with the bona fide intention of continuing to abide permanently without this State, shall be taxable as a resident of this State for that portion of the taxable year in which he resided in this State and as a nonresident of the State for the remainder of the taxable year. The fact that a person who has changed his place of abode, within six months from so doing, again resides within this State, shall be prima facie evidence that he did not intend to have his place of abode permanently without this State. Every individual other than a resident shall he deemed a nonresident.* * *” (Emphasis supplied) ²

The definition of “resident” appearing in § 279 (i) should be read in the light of the definition of “individual” in § 279(e) :

“ ‘individual’ means all natural persons, whether married or unmarried; * *

The principles of statutory construction here involved are too familiar to require more than a brief reference. If there is no ambiguity or obscurity in the words used in the statute, there is no need to look elsewhere to ascertain the intent of the legislature, Maryland Medical Service v. Carver, 238 Md. 466, 477-78, 209 A. 2d 582 (1965) ; Board of Supervisors of Elections v. Weiss, 217 Md. 133, 136, 141 A. 2d 734 (1958). If the legislative intent is expressed in clear and unambiguous language, this will be given effect by the Court, Schmeizl v. Schmeizl, 186 Md. 371, 375, 46 A. 2d 619 (1946).

The State argues that the favorable treatment accorded nonresidents by § 313 (b) is an exemption, which is to be strictly construed against the taxpayer, Armco Steel Corp. v. State Tax Commission, 221 Md. 33, 40, 155 A. 2d 678 (1959). The Trustee, on the other hand, argues that nonresidents are the subject of an exclusion, which, when of doubtful scope, should be construed most strongly in favor of the taxpayer and against the State, citing Baltimore Foundry v. Comptroller, 211 Md. 316, 319, 127 A. 2d 368 (1956) ; Comptroller v. Rockhill, Inc., 205 Md. 226, 234, 107 A. 2d 93 (1954).

As we see it, it matters little whether nonresidents are exempted or excluded. “ [A] contingent remainder is one which is either limited to a person not in being or not certain or ascertained, or so limited to a certain person that his right to the estate depends upon some contingent event in the future,” Safe Dep. & Tr. Co. v. Bouse, 181 Md. 351, 356, 29 A. 2d 906 (1943). The simple fact is that a contingent remainderman, who may be either i person not in being or not ascertained, Chism v. Reese 190 Md. 311, 321, 58 A. 2d 643 (1948) and who may not be a “natural person” at all, is neither a resident nor a nonresident, since both terms import identifiable individuals. A remainderman who is unascertainable, and therefore unidentifiable, is concealed by a cloak of anonymity which will not be lifted until the termination of the preceding estate, when the interest vests in interest or possession and for the first time a determination can be made that the remainder has vested in a resident, or a nonresident, or in a class, some of whom may be residents and some of whom may not be, or even has vested in a corporation.

A helpful analogy can be drawn from the treatment accorded contingent remaindermen when interests less than absolute and succeeding remainder interests, whether vested or contingent, are valued for inheritance tax purposes under Code Art. 81, § 160 and § 161. In an instance where there is a vested remainder subject to divestiture, and a contingent remainder, and one interest is subject to the collateral inheritance tax,

and another to the 1% direct inheritance tax, and the identity of the ultimate taker is not ascertainable, 84 Op. Att’y Gen. 259 (1949) ruled that if the tax were to be prepaid it would have to be paid at the higher rate on the entire value of the remainder interests. Safe Dep. & Tr. Co. v. Bouse, supra, 181 Md. at 361, recognizes that in such an instance, “[a] contingent remainderman has the right to pay a tax on something which he may possibly never receive.”

It seems clear to us that under the circumstances of this case, undistributed capital gains are subject to income tax under § 313 (b), regardless of whether § 313 (b) is read as an exclusion or an exemption. To hold otherwise would be to encompass unascertainable and therefore unidentifiable takers within the statutory concept that nonresidents are individuals not meeting the Act’s definition of residents. We find no ambiguity or obscurity in the language of the statute: whatever ambiguity can be conjured up is the creature of the construction urged on us by the appellant, which would require us to add a provision enlarging the scope of the exemption or ex-elusion, which the legislature did not see fit to include. This is something quite different from construing a statute liberally in favor of a taxpayer, Amalgamated Ins. v. Helms, 239 Md. 529, 534, 212 A. 2d 311 (1965), and something we cannot do.

Judgment affirmed, costs to be paid by appellant.

1 . The parties concede that this is a test case.

2 . It was suggested at argument that the treatment accorded nonresidents was intended to insure that Maryland fiduciaries could remain competitive with fiduciaries in other states.