1. A Virginia statute provides a separate system of taxation for express companies. In lieu of all taxes on their other intangible property and rolling stock, it levies on express companies a "franchise tax" measured by gross receipts from their operations within Virginia, including receipts derived from transportation within the State of express transported through, into or out of the State. Held: As applied to appellant, a foreign corporation doing an exclusively interstate business in Virginia and owning property there, this tax does not violate the Commerce Clause of the Federal Constitution. Pp. 435-443.
199 Va. 589, 100 S. E. 785, affirmed.
Thomas B. Gay argued the cause for appellant. With him on the brief were Robert J. Fletcher, William H. Waldrop, Jr. and H. Merrill Pasco.
Frederick T. Gray, Special Assistant Attorney General of Virginia, argued the cause for appellee. With him on the brief was Albertis S. Harrison, Jr., Attorney General.
MR. JUSTICE CLARK delivered the opinion of the Court.
Once again the effort of the Commonwealth of Virginia to levy a tax against express agencies is before us for decision. Nearly five years ago this Court struck down as a "privilege tax" violative of the Commerce Clause of the Federal Constitution its tax statute under which was laid an assessment on appellant's "privilege of doing business" in Virginia. 1 Railway Express Agency v. Virginia, 347 U.S. 359 (1954). Subsequently the Virginia General Assembly enacted the Act here involved levying a "franchise tax" on express companies, measured by gross receipts from operations within Virginia, in lieu of all other property taxes on intangibles and rolling stock. In due course an assessment against appellant was made thereunder for 1956. Both the State Corporation Commission, [358 U.S. 434, 436] which has jurisdiction of such levies in Virginia, and the Commonwealth's highest court have upheld the validity of the new law as well as the assessment made thereunder, Railway Express Agency v. Virginia, 199 Va. 589, 100 S. E. 2d 785. Appellant levels a dual attack, the first being that the statute is a "privilege tax" and like the former one violates the Commerce Clause; or, secondly, that in any event the assessment under it is calculated in such a manner as to deprive appellant of its property without due process of law in violation of the Fourteenth Amendment. On appeal we noted probable jurisdiction, 356 U.S. 929 (1958). We believe that Virginia has eliminated the Commerce Clause objections sustained against its former tax law. While the tax is in lieu of other property taxes which Virginia can legally assess and should be their just equivalent in amount, Postal Telegraph Cable Co. v. Adams, 155 U.S. 688, 696 (1895), we will not inquire into the exactitudes of the formula where appellant has not shown it to be so baseless as to violate due process. Nashville, C. & St. L. R. v. Browning, 310 U.S. 362 (1940). The failure of the appellant to furnish, in its return, certain necessary information showing its gross receipts allocated to Virginia, called for under the statute and requested by the Commonwealth, has left the correct amount unobtainable by the latter except by some method of approximation and places the burden on appellant to come forward with affirmative evidence of extraterritorial assessment.
Appellant concedes that the Commerce Clause does not prohibit the States from levying a tax on property owned by a concern doing an interstate business. It agrees that it has rolling stock and money in the Commonwealth, as well as intangibles, including its exclusive express privileges with the railroads. It readily admits that the latter agreements are "valuable contract rights" and contribute a principal element to the "going concern value" of its business in the Commonwealth. Subsuming that a valid tax levy might be levied on such intangibles, it argues, however, that the incidence of the tax is on appellant's privilege to carry on an exclusively interstate business in Virginia rather than on intangible property. Our sole question under the Commerce Clause is whether the tax in practical operation is on property or on privilege.
The due process issue is entangled with appellant's failure to file, in its report, data covering its gross receipts allocated to Virginia. 4 Failing to do this the State Corporation [358 U.S. 434, 440] Commission used a formula which in effect ascribed to Virginia the proportion of such receipts as the mileage of carriers within Virginia bore to the total national mileage of the same lines. 5 Appellant contends that the assessment made in this manner is violative of due process and that the resulting amount of tax levied was confiscatory.
In any event, appellant argues, the "in lieu" provisions of the law, as applied to it, are invalid. Admitting that it had cash, intangibles and rolling stock that were subject to a state tax but which suffered none because of the "in lieu" provisions of this law, it contends that the tax assessed under the latter was no just equivalent of the "in lieu" taxes but was greatly in excess thereof and violative of due process.
Appellant buttresses its argument with reasoning that a tax on "going concern" value just cannot be measured by fairly apportioned gross receipts. While it may be true that gross receipts are not the best measure, it is too late now to question its constitutionality. Illinois Cent. R. Co. v. Minnesota, 309 U.S. 157 (1940); Great Northern R. Co. v. Minnesota, 278 U.S. 503 (1929); Pullman Co. v. Richardson, 261 U.S. 330 (1923); Cudahy Packing Co. v. Minnesota, 246 U.S. 450 (1918); United States Express Co. v. Minnesota, 223 U.S. 335 (1912); Wisconsin & M. R. Co. v. Powers, 191 U.S. 379 (1903). These decisions are still in good standing on our books. Even on the former appeal this Court used the following language:
We are not convinced by appellant's "boot strap" argument that the express privileges it enjoys have no value to it because all of its net income by agreement with the railroads is paid over to them. We believe it more accurate to rely on its admission that "No one would question the fact that Appellant's exclusive express privileges on the railroads are valuable contract rights." This concession, when taken in the light of the expressed purpose of appellant that the payment of its net income for the use of the express privileges was solely to make certain "that the Express Company shall have no net taxable income," exposes the frivolous nature of this contention. We are not so blinded to business realities as to permit such a manipulation of the finances of appellant, the railroads' wholly owned subsidiary, to frustrate the Commonwealth in its effort to collect an otherwise fair tax.
Nor is there any substance to the contention that since Virginia could not prohibit appellant from engaging in its exclusively interstate business, it therefore may not tax "good will" or "going concern" value which is built up thereby. We need only cite some of the cases of this Court holding to the contrary: Great Northern R. Co. v. Minnesota, 278 U.S. 503 (1929); Pullman Co. v. Richardson, 261 U.S. 330 (1923); Cudahy Packing Co. v. Minnesota, [358 U.S. 434, 443] 246 U.S. 450 (1918); United States Express Co. v. Minnesota, 223 U.S. 335 (1912); Adams Express Co. v. Ohio, 165 U.S. 194 (rehearing 166 U.S. 185 (1897)); Western Union Telegraph Co. v. Taggart, 163 U.S. 1 (1896); Cleveland, C., C. & St. L. R. Co. v. Backus, 154 U.S. 439 (1894).
The difference in the two percentages, appellant contends, must represent intangible values on which Virginia cannot operate because located outside of its jurisdiction. This syllogism does not take into account the facts of business life. Tangible assets in Virginia may produce much more income than like assets elsewhere. Death Valley Scotty generated much less gross from his desert sightseeing wagon than did his counterpart in Central Park. The utter fallacy of using tangible assets as the test of going-concern value here is demonstrated by the fact that appellant's tangible assets in Virginia depend entirely on whether it elects to retain title to tangible property or place it in the name of its subsidiary, [358 U.S. 434, 444] the Virginia company. By placing them in the Virginia company it could thus, on a tangible asset formula, escape all tax on its intangibles.
There is nothing in the record even to indicate that the tangible assets that appellant carries in its own name in Virginia did not actually generate the amount of gross receipts attributed to it by the State Corporation Commission. In this connection, we note that 1.9% of appellant's total contract mileage was located there. Even where taxpayers have attempted to show through evidence, as this appellant has not, that a given apportionment formula effected an appropriation of more than that to which the State was entitled, this Court has required "`clear and cogent evidence' that it results in extraterritorial values being taxed." Butler Bros. v. McColgan, 315 U.S. 501, 507 (1942); Norfolk & Western R. Co. v. North Carolina, 297 U.S. 682, 688 (1936); cf. Bass, Ratcliff & Gretton, Ltd., v. Tax Comm'n, 266 U.S. 271, 282 -284 (1924). As this Court said in Nashville, C. & St. L. R. v. Browning, 310 U.S. 362, 365 -366 (1940):
It follows from what we have said that the tax is valid. and the judgment below is therefore
[ Footnote 2 ] See Va. Const., 170; and Va. Code, 1950, 58-9, 58-10.
[ Footnote 3 ] Va. Code, 1950, 58-546, et seq., as amended by Va. Acts 1956, c. 612.
[ Footnote 4 ] In its return, appellant stated that it was "unable" to ascertain its gross receipts from express transported "through, into or out of" the Commonwealth. The record contains testimony to this effect by one of appellant's officers. The record also shows, from one of appellant's own exhibits, that since 1931 the tax year in question is the only year in which appellant has been "unable" to report this information. From 1931 to 1953, appellant managed to find a way of compiling or computing and reporting such data, and in only 7 of these 23 years did the Commonwealth disagree with appellant's figures. Due to the downfall of the old tax in Railway Express Agency v. Virginia, supra, there was no reporting requirement for 1954 and 1955. Under the new tax, for 1956, appellant made no attempt to present evidence to show what reductions should be made in the Commission's figures, nor did it explore the possibility of an agreement about it as it apparently had in prior years. Cf. Cohan v. Commissioner of Internal Revenue (C. A. 2d Cir. 1930), 39 F.2d 540, 543-544. Instead, it relied completely upon its claim that the tax was unconstitutional.
[ Footnote 5 ] Actually, the amounts paid to such carriers for Virginia traffic were ascertained by that method. Since the carrier payments represent only net receipts, the Virginia gross receipts were determined by applying to the Virginia carrier payments the ratio that its total gross receipts bore to its total carrier payments.
[ Footnote 6 ] Parenthetically, it might be noted that the Adams case involved a "going concern" valuation of $488,265 as compared to a "dead" valuation of property in the amount of $28,438. 165 U.S. 194, 237 .
MR. JUSTICE HARLAN, concurring.
I share the reservations of MR. JUSTICE BRENNAN as to the propriety of considering the tax described in the opinion of the Court as a property tax. I find myself unable, however, to distinguish in any constitutional [358 U.S. 434, 446] sense the "in lieu" tax here involved from similar levies the validity of which has been sustained as applied to interstate enterprises in the line of cases cited in the Court's opinion, and therefore join the opinion.
MR. JUSTICE BRENNAN, concurring.
While I join the opinion and judgment of the Court, I must admit to some reservations whether the tax at bar can fairly be thought of as a property tax. The discussion of the Court in this case's predecessor, Railway Express Agency, Inc., v. Virginia, 347 U.S. 359, 364 -367, cast serious doubt on the propriety of viewing Virginia's former tax as a property tax, and I share that doubt. The only modification in the mathematical demonstration of the prior decision necessitated by the revision of the tax statute is brought about by the new statute's provision that the tax is in lieu of other taxes on the appellant's intangible property and rolling stock. In practical effect, this means that payment of this $139,739.66 tax is "in lieu" of a 1/5% tax on $120,110.70 of cash, amounting to $240.22; a tax, amounting to $427.56, on the value, apportioned to the State, of the appellant's refrigerator cars; and a 2 1/2% tax on its trucks, * valued at $262,719, amounting to $6,567.98. These taxes, in lieu of which the $139,739.66 tax at bar is payable, aggregate $7,235.76. It seems to me doubtful whether this makes a significant [358 U.S. 434, 447] alteration in the demonstration the Court made on the prior appeal with respect to the status as a property tax of the gross receipts tax on express companies. While the tax may be a rough equivalent of some sort of property tax that Virginia might conceivably levy on express companies, I do not see that it has been made clear that it bears any equivalence to any sort of property tax that she in fact levies on other sorts of businesses or has in fact previously levied on express companies. Cf. Pullman Co. v. Richardson, 261 U.S. 330, 339 . On the other hand, I cannot deny that this Court has, in decisions cited by the Court's opinion, frequently admitted gross receipts taxes to the characterization of "property taxes" in situations where their equivalence with any actual property tax was somewhat tenuous. See, e. g., Illinois Central R. Co. v. Minnesota, 309 U.S. 157 .
To me, the more realistic way of viewing the tax and evaluating its constitutional validity is to take it as what it is in substance, a levy on gross receipts fairly apportionable to the taxing State. Virginia has a comprehensive scheme of state income and gross receipts taxes on business corporations, with net income taxes the standard in the case of ordinary businesses and gross receipts taxes in the case of most categories of utility or "public service" corporations. The gross receipts taxing structure does not single out this interstate transportation company, or discriminate against it, but rather requires it only to pay its share, at a tax rate comparable to the rates on the gross receipts of other categories of public service corporations, and in fact lower than those on many important ones. To restrict the gross receipts subject to the tax to an amount representing that part of appellant's interstate movements which takes place within the State, the State has employed an apportionment formula. That formula is not on its face unfair or discriminatory toward interstate commerce or indicative of an imposition on out-of-state [358 U.S. 434, 448] activities, and the opinion of the Court amply demonstrates that this appellant cannot maintain a challenge to the details of its application here. The label of the tax as a "privilege" or "license" tax, proscribed by this case's predecessor, has been eliminated, as the Court's opinion shows. This Court's decisions sustain the application of a fairly apportioned general gross receipts tax to an interstate transportation company. Canton R. Co. v. Rogan, 340 U.S. 511, 515 -516; Central Greyhound Lines, Inc., v. Mealey, 334 U.S. 653, 663 -664. Cf. Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 256 . In my view, the most compelling reason for affirming the judgment of the Supreme Court of Appeals of Virginia is the application of the principles of these cases here.
[ Footnote * ] The State informs us that the appellant's trucks have been ruled to be "rolling stock" and therefore shielded by the "in lieu" provision of the new statute. While the Virginia Code does not in terms set forth a rate of taxation for the rolling stock of express companies, the rates provided for the rolling stock of railway and of freight car companies are 2 1/2% ad valorem. Va. Code 58-515, 58-560. This rate would appear appropriate for exploring the equivalence of this "in lieu" tax to a corresponding property tax, and in fact the rate, as established by the latter section, has been used before the "in lieu" provision as a basis for the taxation of appellant's refrigerator cars.
MR. JUSTICE WHITTAKER, with whom MR. JUSTICE STEWART joins, dissenting.
I cannot agree. Let me very briefly put the case in perspective, as I see it. Taxation of the property of appellant's Virginia subsidiary, which does an intrastate business in Virginia, is not at all involved here. The Court properly observes the fact that "Appellant's Virginia business is . . . of an exclusively interstate nature." In the year involved it owned in Virginia tangible real and personal property which was taxed by Virginia under other statutes and is not involved in this case. Virginia also claims that appellant had intangible property in Virginia. It is upon those intangibles, so claimed to have been present in the State, that Virginia sought to lay its "franchise tax," said by it to be a "property tax" measured by appellant's gross receipts, allocable to Virginia, from "exclusively" interstate commerce. Admittedly appellant had a bank account and some "rolling stock" in Virginia, upon which, doubtless, Virginia validly could lay an ad valorem tax. But the dispute is over the following. Virginia claims that appellant should be deemed to have [358 U.S. 434, 449] had in Virginia, and subject to the taxing statute here involved, substantially that percentage of the value of its national "good will," and of its exclusive express carriage contract with the railroads, which the ratio of the mileage of carriers which it uses in interstate commerce in Virginia bears to the total mileage of the same carriers which it uses everywhere in such commerce. Appellant contends that Virginia's claim in these respects is unconstitutional. Which of them is right? I think it is appellant. I think so for two reasons. First, the exclusive carriage contract which appellant has with the railroads requires it, as the Court observes, to pay "all of its net income" to the railroads. Therefore, as a matter of both fact and law, that contract can have no dollar value to appellant, distinguished from the railroads, to be taxed to it anywhere. Second, appellant's "good will," if any, does not consist of anything localized in Virginia, but inheres solely in its "exclusively" interstate business - a business that Virginia cannot reach or regulate, by direct taxation or otherwise, because it is prohibited from doing so by the Commerce Clause of the Constitution, Art. I, 8, cl. 3. My views on that subject are fully stated in my dissenting opinion in No. 12, Northwestern States Portland Cement Co. v. Minnesota, and No. 33, Williams v. Stockham Valves & Fittings, Inc., post, at p. 477. I would therefore reverse the judgment of the Supreme Court of Appeals of Virginia. [358 U.S. 434, 450]