[252 U.S. 60, 61] Messrs. James S. Y. Ivins, of Albany, N. Y., and Jerome L. Cheney, First Deputy Atty. Gen., for appellant.
[252 U.S. 60, 66] Messrs. Louis H. Porter and Archibald Cox, both of New York City, for appellee.
Mr. Justice PITNEY delivered the opinion of the Court.
This was a suit in equity, brought in the District Court by appellee against appellant as comptroller of the state of New York to obtain an injunction restraining the enforcement of the Income Tax Law of that state ( chapter 627, Laws 1919) as against complainant, upon the ground of its repugnance to the Constitution of the United States because violating the interstate commerce clause, impairing the obligation of contracts, depriving citizens of the states of Connecticut and New Jersey employed by complainant of the privileges and immunities enjoyed by citizens of the state of New York, depriving complainant and its nonresident employes of their [252 U.S. 60, 73] property without due process of law, and denying to such employes the equal protection of the laws. A motion to dismiss the bill-equivalent to a demurrer-was denied upon the ground that the act violated section 2 of article 4 of the Constitution by discriminating against nonresidents in the exemptions allowed from taxable income; an answer was filed, raising no question of fact; in due course there was a final decree in favor of complainant; and defendant took an appeal to this court under section 238, Judicial Code (Comp. St. 1215).
The act (section 351) imposes an annual tax upon every resident of the state with respect to his net income as defined in the act, at specified rates, and provides also:
Section 359 defines gross income, and contains this paragraph:
In section 360 provision is made for deducting in the computation of net income expenses, taxes, losses, depreciation charges, etc.; but, by paragraph 11 of the same section:
By [252 U.S. 60, 74] section 362, certain exemptions are allowed to any resident individual taxpayer, viz. in the case of a single person a personal exemption of $1, 000, in the case of the head of a family or a married person living with husband or wife, $2,000, and $200 additional for each dependent person under 18 years of age or mentally or physically defective. The next section reads as follows:
Section 366 in terms requires that every 'withholding agent' ( including employers) shall deduct and withhold 2 per centum from all salaries, wages, etc., payable to nonresidents, where the amount paid to any individual equals or exceeds $1,000 in the year, and shall pay the tax to the comptroller. This applies to a resident employe, also, unless he files a certificate showing his residence address within the state.
Complainant, a Connecticut corporation doing business in New York and elsewhere, has employes who are residents, some of Connecticut, others of New Jersey, but are occupied in whole or in part in complainant's business in New York. Many of them have annual salaries or fixed compensation exceeding $1,000 per year, and the [252 U.S. 60, 75] amount required by the act to be withheld by complainant from the salaries of such nonresident employes is in excess of $3,000 per year. Most of these persons are engaged under term contracts calling for stipulated wages or salaries for a specified period.
The bill sets up that defendant, as comptroller of the state of New York, threatens to enforce the provisions of the statute against complainant, requires it to deduct and withhold from the salaries and wages payable to its employes residing in Connecticut or New Jersey and citizens of those states respectively, engaged in whole or in part in complainant's business in the state of New York, the taxes provided in the statute, and threatens to enforce against complainant the penalties provided by the act if it fails to do so; that the act is unconstitutional for the reasons above specified; and that, if complainant does withhold the taxes as required, it will be subjected to many actions by its employes for reimbursement of the sums so withheld. No question is made about complainant's right to resort to equity for relief; hence we come at once to the constitutional questions.
That the state of New York has jurisdiction to impose a tax of this kind upon the incomes of nonresidents arising from any business, trade, profession, or occupation carried on within its borders, enforcing payment so far as it can by the exercise of a just control over persons and property within the state, as by garnishment of credits (of which the withholding provision of the New York law is the practical equivalent), and that such a tax, so enforced, does not violate the due process of law provision of the Fourteenth Amendment, is settled by our decision in Shaffer v. Carter, State Auditor, 252 U.S. 37 , 40 Sup. Ct. 221. 64 L. Ed . --, this day announced, involving the Income Tax Law of the state of Oklahoma. That there is no unconstitutional discrimination against citizens of other states in confining the deduction of expenses, losses, etc., in the case of nonresident taxpayers, to such as are [252 U.S. 60, 76] connected with income arising from sources within the taxing state, likewise is settled by that decision.
It is not here asserted that the tax is a burden upon interstate commerce; the point having been abandoned in this court.
The contention that an unconstitutional discrimination against noncitizens arises out of the provision of section 366 confining the withholding at source to the income of nonresidents is unsubstantial. That provision does not in any wise increase the burden of the tax upon nonresidents, but merely recognizes the fact that as to them the state imposes no personal liability, and hence adopts a convenient substitute for it. See Bell's Gap Railroad Co. v. Pennsylvania, 134 U.S. 232, 239 , 10 S. Sup. Ct. 533.
Nor has complainant on its own account any just ground of complaint by reason of being required to adjust its system of accounting and paying salaries and wages to the extent required to fulfill the duty of deducting and withholding the tax. This cannot be deemed an unreasonable regulation of its conduct of business in New York. Erie Railroad v. Pennsylvania, 153 U.S. 628 , 14 Sup. Ct. 952, cited in behalf of complainant, is not in point. In that case the state of Pennsylvania grantedto a railroad company organized under the laws of New York and having its principal place of business in that state the right to construct a portion of its road through Pennsylvania, upon prescribed terms which were assented to and complied with by the company and were deemed to constitute a contract, not subject to impairment or modification through subsequent legislation by the state of Pennsylvania except to the extent of establishing reasonable regulations touching the management of the business done and the property owned by the company in that state, not materially interfering with or obstructing the substantial enjoyment of the rights previously granted. Afterwards, Pennsylvania undertook by statute to re [252 U.S. 60, 77] quire the company, when making payments of coupons upon bonds previously issued by it, payable at its office in the city of New York, to withhold taxes assessed by the state of Pennsylvania against residents of that state because of ownership of such bonds. The coupons were payable to bearer, and when they were presented for payment it was practically impossible for the company to ascertain who were the real owners, or whether they were owned by the same parties who owned the bonds. The statute was held to be an unreasonable regulation and hence to amount to an impairment of the obligation of the contract.
In the case at bar complainant, although it is a Connecticut corporation and has its principal place of business in that state, is exercising the privilege of carrying on business in the state of New York without any contract limiting the state's power of regulation. The taxes required to be withheld are payable with respect to that portion only of the salaries of its employes which is earned within the state of New York. It might pay such salaries, or this portion of them, at its place of business in New York; and the fact that it may be more convenient to pay them in Connecticut is not sufficient to deprive the state of New York of the right to impose such a regulation. It is true complainant asserts that the act impairs the obligation of contracts between it and its employes; but there is no averment that any such contract made before the passage of the act required the wages or salaries to be paid in the state of Connecticut, or contained other provisions in any wise conflicting with the requirement of withholding.
The District Court, not passing upon the above questions, held that the act, in granting to residents exemptions denied to nonresidents, violated the provision of section 2 of article 4 of the federal Constitution:
And, notwithstanding [252 U.S. 60, 78] the elaborate and ingenious argument submitted by appellant to the contrary, we are constrained to affirm the ruling.
The purpose of the provision came under consideration in Paul v. Virginia, 8 Wall. 168, 180 (19 L. Ed. 357), where the court, speaking by Mr. Justice Field, said:
And in Ward v. Maryland, 12 Wall. 418, 430 (20 L. Ed. 449), holding a discriminatory state tax upon nonresident traders to be void, the court, by Mr. Justice Clifford, said:
Of course the terms 'resident' and 'citizen' are not synonymous, and in some cases the distinction is important [252 U.S. 60, 79] (La Tourette v. McMaster, 248 U.S. 465, 470 , 39 S. Sup. Ct. 160); but a general taxing scheme such as the one under consideration, if it discriminates against all nonresidents, has the necessary effect of including in the discrimination those who are citizens of other states; and, if there be no reasonable ground for the diversity of treatment, it abridges the privileges and immunities to which such citizens are entitled. In Blake v. McClung, 172 U.S. 239, 247 , 19 S. Sup. Ct. 165, and 176 U.S. 59, 67 , 20 S. Sup. Ct. 307, the court held that a statute of Tennessee, declaring the terms upon which a foreign corporation might carry on business and hold property in that state, which gave to its creditors residing in Tennessee priority over all creditors residing elsewhere, without special reference to whether they were citizens or not, must be regarded as contravening the 'privileges and immunities' clause.
The nature and effect of the crucial discrimination in the present case are manifest. Section 362, in the case of residents, exempts from taxation $1,000 of the income of a single person, $2,000 in the case of a married person, and $200 additional for each dependent. A nonresident taxpayer has no similar exemption; but by section 363, if liable to an income tax in his own state, including income derived from sources within New York and subject to taxation under this act, he is entitled to a credit upon the income tax otherwise payable to the state of New York by the same proportion of the tax payable to the state of his residence as his income subject to taxation by the New York act bears to his entire income taxed in his own state:
It cannot be deemed to be counterbalanced by the provision of paragraph 3 of section 359, which excludes from the income of nonresident taxpayers--
This provision is not so conditioned as probably to benefit nonresidents to a degree corresponding to the discrimination against them; it seems to have been designed rather (as is avowed in appellant's brief) to preserve the pre-eminence of New York City as a financial center.
Nor can the discrimination be upheld, as is attempted to be done, upon the theory that nonresidents have untaxed income derived from sources in their home states or elsewhere outside of the state of New York, corresponding to the amount upon which residents of that state are exempt from taxation under this act. The discrimination is not conditioned upon the existence of such untaxed income; and it would be rash to assume that nonresidents taxable in New York under this law, as a class, are receiving additional income from outside sources equivalent to the amount of the exemptions that are accorded to citizens of New York and denied to them.
In the brief submitted by the Attorney General of New York in behalf of appellant, it is said that the framers of the act, in embodying in it the provision for unequal treatment of the residents of other states with [252 U.S. 60, 82] respect to the exemptions, looked forward to the speedy adoption of an income tax by the adjoining states, in which event injustice to their citizens on the part of New York could be avoided by providing similar exemptions similarly conditioned. This, however, is wholly speculative; New York has no authority to legislate for the adjoining states; and we must pass upon its statute with respect to its effect and operation in the existing situation. But besides, in view of the provisions of the Constitution of the United States, a discrimination by the state of New York against the citizens of adjoining states would not be cured were those states to establish like discriminations against citizens of the state of New York. A state may not barter away the right, conferred upon its citizens by the Constitution of the United States, to enjoy the privileges and immunities of citizens when they go into other states. Nor can discrimination be corrected by retaliation; to prevent this was one of the chief ends sought to be accomplished by the adoption of the Constitution.
Mr. Justice McREYNOLDS concurs in the result.
[ Footnote 1 ] Reading the statute literally, there would appear to be an additional discrimination against nonresidents, in that under section 366 the 'withholding agent' (employer) is required to withhold 2 per cent. from all salaries, wages, etc., payable to any individual nonresident amounting to $1,000 or more in the year; whereas by section 351 the tax upon residents (indeed, upon nonresidents likewise, so far as this section goes) is only 1 per centum upon the first $10,000 of net income. It is said, however, that the discrepancy arose through an amendment made to section 351 while the bill was pending in the Legislature; no corresponding amendment having been made in section 366. In view of this, and taking the whole of the act, together, the Attorney General has advised the comptroller that section 366 requires withholding of only 1 per centum upon the first $10,000 of income; and the comptroller has issued regulations to that effect. Hence we treat the discrepancy as if it did not exist.