Michigan National Bank v. Michigan/Opinion of the Court

The State of Michigan levies 'on the privilege of ownership' a 5 1/2-mill tax per dollar on the value of each common share of stock in national banks located in the State. It requires federal and state savings and loan associations in the State to pay, in addition to other taxes not here involved, for its shareholders an intangibles tax of 2/5 a mill on each dollar of the paid-in value of their shares. In addition, state associations also pay a franchise tax of 1/4 mill per dollar of their capital and legal reserves. Appellant Michigan National Bank, with banking offices in eight Michigan cities, brought this suit to recover taxes paid under protest for the year 1952, claiming that the levy under Michigan's Act No. 9 resulted in a tax on national bank shares at least eight times greater than that levied on 'other moneyed capital in the hands of individual citizens' in the State, in violation of § 5219 of the Revised Statutes of the United States. Initially its attack referred to moneyed capital in the hands of insurance and finance companies, credit unions and individuals, as well as savings and loan associations. Before trial in the Michigan Court of Claims, however, its claim was limited to the latter only, asserting that these institutions were in substantial competition with a phase of the national banking business, i.e., residential mortgage loans, and were preferentially taxed. The resulting tax discrimination, appellant says, renders Act No. 9 invalid under the controlling decisions of this Court. Michigan's highest court has upheld the statute against this claim. 358 Mich. 611, 101 N.W.2d 245. We noted probable jurisdiction, 364 U.S. 810, 81 S.Ct. 51, 5 L.Ed.2d 40. We have concluded that in practical operation, Michigan's tax structure does not have a discriminatory effect and is, therefore, valid. This determination obviates the necessity of our considering the voluminous and confusing statistics relevant to the issue of whether or not there exists competition between banks and savings and loan associations in the State.

The sole authorization upon which Michigan's Act No. 9 may rest is § 5219. First Nat. Bank of Guthrie Center v. Anderson, 1926, 269 U.S. 341, 46 S.Ct. 135, 70 L.Ed. 295; Des Moines Nat. Bank v. Fairweather, 1923, 263 U.S. 103, 44 S.Ct. 23, 68 L.Ed. 191. That authorization is qualified by a proviso that a state tax on national bank shares shall not be 'at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks.' We have assumed, without deciding, that the national banks located in Michigan and savings and loan associations there are in competition in a substantial phase of the business carried on by national banks, i.e., residential mortgage loans. The sole question here is whether Act No. 9 effects a tax discrimination between national banks and savings and loan associations.

Michigan first authorized the organization of savings and loan associations in 1887. They operate today under the same law as 'cooperative' or mutual associations which accumulate capital only through the sale of shares to members, and by retention of a permitted surplus and a reserve from profits. They may make loans only on first mortgage real estate notes and can neither carry on a banking business nor received deposits Their reserves must equal 10% of liabilities to their members and the associations' surplus is limited to 5% of assets. Earnings above the permitted reserves and surplus must be paid to members currently and at stated periods. The Congress authorized the organization of federal savings and loan associations in 1933 in the Home Owners' .loan Act, 48 Stat. 128, as amended, 12 U.S.C. §§ 1461-1468, 12 U.S.C.A. §§ 1461-1468. They operate along the same general lines as state associations. The shares of members in both are insured by the Federal Savings and Loan Insurance Corporation.

National banks, of course, engage in the general banking business as authorized by the National Bank Act. Prior to 1916 they were not permitted to make real estate mortgage loans except on certain farm lands. In that year the Congress authorized the banks to make residential loans for a term of not over a year and to the extent of 50% of the value of the mortgaged property. This term was first enlarged in 1927 to five years and then to 10 years in 1935 by 49 Stat. 706, which also authorized an increase to 60% as the maximum proportion of property value permitted to be loaned. In 1934, national banks were authorized to purchase F.H.A. guaranteed mortgages. Ten years later that authority was enlarged to include V.A. loans which the Comptroller of the Currency by decision found to be in the same category as F.H.A. mortgages. It was not until this time that national banks became any significant factor in the residential mortgage field. By 1952 the ratio of their deposits to their total assets had more than doubled, amounting to 92% of their assets, having totaled only 41% thereof at the time of the passage of § 5219.

Michigan National was organized in 1941 with 150,000 shares of $10 par value and total resources of about $68,000,000. In 1952 it had outstanding 500,000 shares of the same par value (all of the increase having been issued as dividends) and resources of some $306,000,000. In 1952 its gross earnings on its capital account were 91%, which, after all expenses and taxes (except dividends and federal income tax), remained at over 31%. The 16 building and loan associations' average net earnings for the same year (before dividends and federal income taxes) amounted to 3.4% of their capital, approximately their normal annual earning. A $1,000 investment in Michigan National's stock (58.8 shares) in 1941 was worth $6,691.20 (157.5 shares) by 1952, an annual average increase in value of 61%. This does not include $1,308.80 in cash dividends paid over the same period.

Background and Construction of the Legislation.

1. Section 5219.

Congress enacted the Section in 1864 and this Court has passed on it over 55 times in the near century of the Section's existence. During that period the Court has kept clearly in view, as was said in the last case in which it wrote, that 'the various restrictions (§ 5216) * *  * places on the permitted methods of taxation are designed to prohibit only those systems of state taxation which discriminate in practical operation against national banking associations or their shareholders as a class.' Tradesmens Nat. Bank of Oklahoma City v. Oklahoma Tax Comm., 1940, 309 U.S. 560, 567, 60 S.Ct. 688, 692, 84 L.Ed. 947. Reverting to one of the first and controlling cases dealing with the Section, Mercantile Nat. Bank of New York v. Mayor, etc., of New York, 1887, 121 U.S. 138, 7 S.Ct. 826, 30 L.Ed. 895, we find that Mr. Justice Matthews declared for a unanimous Court that the purpose of the Congress in passing the provision was 'to prohibit the States from imposing such a burden as would prevent the capital of individuals from freely seeking investment in institutions which it was the express object of the law to establish and promote.' At page 154 of 121 U.S., at page 835 of 7 S.Ct. The Court further held deposits in savings banks to be moneyed capital but approved their total exemption from state taxes, along with other enumerated property, on the ground that the State had shown 'just reason' so to do. In essence the case stands for the proposition that the State cannot, by its tax structure, create 'an unequal and unfriendly competition' with national banks. This case followed in the light of Hepburn v. School Directors, 1874, 23 Wall. 480, 23 L.Ed. 112, where Chief Justice Waite had pointed out that the taxable value of the stock in a national bank is not necessarily determined by its nominal or par value but rather by 'the amount of moneyed capital which the investment represents for the time being.' 'Therefore some plan must be devised to ascertain what amount of money at interest is actually represented by a share of stock.' At page 484 of 23 Wall.

The question of tax equivalence thus posed has echoed and re-echoed through the cases. A year subsequent to the decision in Mercantile Bank, supra, the same point was raised in Bank of Redemption v. City of Boston, 1888, 125 U.S. 60, 8 S.Ct. 772, 31 L.Ed. 689, where the exemption of deposits in savings banks was approved in an opinion which again was written by Mr. Justice Matthews. The Court, in comparing the tax levied on the two institutions, i.e., national banks and savings banks, said: 'But shares of the national banks, while they constitute the capital stock of the corporations, do not represent the whole amount of the capital actually employed by them. They have deposits, too, shown in the present record to amount, in Massachusetts, to $132,042,332. The banks are not assessed for taxation on any part of these, although these deposits constitute a large part of the actual capital profitably employed by the banks in the conduct of their banking business. But it is not necessary to establish the exact equality in result of the two modes of taxation.' At page 67 of 125 U.S., at page 776 of 8 S.Ct. A quarter of a century later, Mr. Justice Pitney in Amoskeag Savings Bank of Manchester, N.H. v. Purdy, 1913, 231 U.S. 373, 34 S.Ct. 114, 58 L.Ed. 274, in commenting on the factors to be considered in determining the burden of the tax, said: 'There are other considerations to be weighed in determining the actual burden of the tax, one of which is the mode of valuing bank shares-by adopting 'book values' (capital, surplus, undivided profits)-which may be more or less favorable than the method adopted in valuing other kinds of personal property.' At page 392 of 231 U.S., at page 122 of 34 S.Ct. The point was made even more clearly by Mr. Justice Brandeis in First Nat. Bank of Shreveport v. Louisiana Tax Comm., 1933, 289 U.S. 60, 53 S.Ct. 511, 77 L.Ed. 1030, where he said: 'There is a fundamental difference between banks, which make loans mainly from money of depositors, and the other financial institutions, which make loans mainly from the money supplied otherwise than by deposits.' At page 64 of 289 U.S., at page 512 of 53 S.Ct. And so, we are taught that in determining the burden of the tax-its discriminatory character-we look to its effect, not its rate. See Amoskeag Savings Bank, supra; City of Convington v. First Nat. Bank, 1905, 198 U.S. 100, 25 S.Ct. 562, 49 L.Ed. 963, and Tradesmens Nat. Bank of Oklahoma City v. Oklahoma Tax Comm., supra, the last case of this Court on the point.

2. Michigan's Act No. 9.

Act No. 9, we have stated, levies a tax of 5 1/2 mills on the book value of each share of stock in national banks, while the separately imposed tax on all savings and loan association shares, exclusive of other taxes, is 2/5 of a mill on the paid-in value of the shares plus, on state associations only, 1/4 of a mill on the value of the paid-in capital and legal reserves. It appears from the record that prior to the enactment of this tax an inequity in the State's tax structure was thought to exist between state and national banks. Upon study of the problem and the recommendation of the Taxation Committee of the Michigan Bankers Association, the State Legislature decided to tax all banks 'exactly alike.' It embodied the proposal of the Association into Act No. 9. While we have no legislative history in the record before us, according to the amicus curiae brief of the Bankers Association filed in the trial court, the sponsors of Act No. 9 thought it would be 'reasonable from the viewpoint of the public, equitable from the viewpoint of the competitors, and practical from the viewpoint of the banks themselves.' The opinion of responsible officials of this Association, filed in this case some seven years after Act No. 9 had been in effect and the taxes therein provided paid without protest, save for appellant and four other banks, was: 'Actual experience with the taxation system shows that it has produced a reasonable amount of revenue to the State; that it has not created any competitive disadvantage among the various types of institutions; and that it has proven to be simple to administer.'

Michigan's Supreme Court has also held that no discrimination in the tax was proven. While the basis of this holding is not too clear, we take it that the finding of total tax equality as between the national banks and the associations, insofar as Act No. 9 was concerned, meant that, in the court's view, the Michigan Legislature, in fixing the rate (5 1/2 mills) on the banks, had either (1) taken into consideration the moneyed capital on hand in each type of institution, i.e., deposits, which were not present as to savings and loan associations, or (2) if such method of valuation of bank stock was not permissible, that the Legislature intended to exempt from taxation any difference between the taxes levied on national banks and savings and loan associations because of the functions of the latter as repositories for the 'small savings and accumulations of the industrious and thrifty.' Such differences, the Michigan Supreme Court said (358 Mich. 611, 101 N.W.2d 259), were 'justified as partial exemptions,' under Mercantile Bank, supra, and subsequent cases. While we are not bound by either of these interpretations placed on Act No. 9 by Michigan's highest court, 358 Mich. 611, 639-640, 101 N.W.2d 245, 259-260, we do accept as controlling its interpretation that, in fixing the rate on national bank shares, the Legislature took into account the moneyed capital controlled thereby.

We believe that, granted satisfaction of the other qualifications of § 5219, a State's tax system offends only if in practical operation it discriminates against national banks or their shareholders as a class. That is to say, we could not strike down Act No. 9, as interpreted by Michigan's highest court, unless it were manifest that an investment in national bank shares was placed at a disadvantage by the practical operation of the State's law. According to our cases, discussed above, that clearly appears to have been the purpose of the Congress in enacting § 5219. We have made a comprehensive examination of the record and fail to find such a discriminatory effect to be manifest in Michigan's tax system.

As has been repeatedly indicated in our decisions, a dollar invested in national bank shares controls many more dollars of moneyed capital, the measuring rod of § 5219. On the other hand, the same dollar invested in a savings and loan share controls no more moneyed capital than its face value. The bank share has the power and control of its proportionate interest in all of the money available to the bank for investment purposes. In the case of Michigan National, this control is more than 21 times greater than the share's proportionate interest in the capital stock, surplus and undivided profits would indicate. As to all national banks in the United States, the record shows that capital accounts amounting to about $7,000,000,000 control some $100,000,000,000 of deposits (92% of the total assets of all these banks) or an amount 14 times greater. Savings and loan associations have no similar assets of that character, their only source of moneyed capital being the share accounts of members and, at least in the case here, the relatively small amount of retained earnings and surplus permitted under law.

Relating the statistics to the immediate problem, the capital, surplus and undivided profits of Michigan National totaled about $13,000,000, to which the 5 1/2-mill tax was applied. The tax amounted to $68,181. The 16 savings and loan associations with which appellant was in competition had a paid-in share value of $134,000,000, to which was applied the 2/5-mill tax. The resultant tax was about $53,260. Had the same tax rate (2/5-mill) been applied to the moneyed capital, i.e., deposits, of Michigan National ($283,000,000), the product would have more than equaled the tax revenue from the application of the 5 1/2-mill rate against its capital account. In fact, it would have amounted to about $113,000, or 1.7 times the 1952 tax bill on appellant's shares. Similar results could be obtained as to all national banks in Michigan. Their total capital accounts, $166,700,000, when taxed at the 5 1/2-mill rate, yield some $917,000 in taxes. The 2/5-mill rate, if applied to their total deposits, $3,516,000,000, results in $1,406,000 in taxes. This is more than 1.5 times the 1952 taxes assessed under Act No. 9.

While it is obvious that the taxable value of the shares in these two types of financial institutions is determined by different methods and that they are being taxed at different rates, it does not follow that § 5219 is automatically violated. '(I)t is not a valid objection to a tax on national bank shares that other moneyed capital in the state (is) * *  * taxed at adifferent rate or assessed by a different method unless it appears that the difference in treatment results in fact in a discrimination unfavorable to the holders of the shares of national banks.' Tradesmens Nat. Bank of Oklahoma City v. Oklahoma Tax Comm., supra, 309 U.S. at page 567, 60 S.Ct. at page 692, 84 L.Ed. 947. Cf. Amoskeag Savings Bank of Manchester, N.H. v. Purdy, supra; City of Covington v. First Nat. Bank, supra. We must remember the interpretation placed on Act No. 9 by Michigan's Supreme Court. It held in effect that the Legislature had taken into account, in fixing the different rates on national bank stock and savings and loan shares, the additional moneyed capital controlled by the former. Since Michigan National's share owner's investment has the equivalent profit-making power of an amount 21 times greater than itself and the investor in savings and loan share accounts has no similarly multiplied power, the national bank share would not be 'unfavorably' treated unless it was taxed in excess of 21 times the levy on savings and loan share accounts. Cf. Bank of Redemption v. City of Boston, supra, 125 U.S. at page 67, 8 S.Ct. at page 776, 31 L.Ed. 689. Here the ratio is only 13.8 to one, and if the additional franchise tax upon state associations is included, the proportion drops to 8.5 to one. This is not to say that the value of the bank's deposits is a factor in the computation of the tax to be paid under the Michigan statutes. However, the deposits are relevant to the determination of whether or not the tax, as computed under the statutes, is a greater burden than that placed on 'other moneyed capital.'

It is said, however, that this method would be contrary to State of Minnesota v. First Nat. Bank, 1927, 273 U.S. 561, 47 S.Ct. 468, 71 L.Ed. 774. It was argued in that case that an equivalence of tax between national banks and other moneyed capital existed because, if the tax rate applicable to other moneyed capital was applied to the assets of the bank without deducting liabilities, the ultimate tax would be approximately the same. However, Mr. Justice (later Chief Justice) Stone, writing for the Court, rejected that argument because it 'ignores the fact that the tax authorized by § 5219 is against the holders of the bank shares and is measured by the value of the shares, and not by the assets of the bank without deduction of its liabilities * *  * .' 273 U.S. at page 564, 47 S.Ct. at page 469. However, that case was decided on the authority of First Nat. Bank of Hartford, Wis. v. City of Hartford, 273 U.S. 548, 47 S.Ct. 462, 71 L.Ed. 767, which Mr. Justice Stone also wrote and handed down the same day. There the comparison between the widespread capital exempted and that of national banks which was taxed, led to the invalidation of Wisconsin's tax statute. The error the Court found was that Wisconsin 'construed the decisions of this Court as requiring equality in taxation only of moneyed capital invested in businesses substantially identical with the business carried on by national banks.' 273 U.S. at page 555, 47 S.Ct. at page 464. While Minnesota's Act, as construed, was not so broad, it taxed capital (including state bank shares) other than that invested in national bank shares at a lower rate. Since both national and state banks were permitted to deduct deposits, it followed that it would have been discriminatory to tax one at a lower rate than the other. However, implicit in the ruling is the proposition that if the same base is employed in the valuation of the shares of the competing institutions, as here, and the practical effect of the different rate does not result in a discrimination against moneyed capital in the hands of national banks, when compared with other competing moneyed capital, it does not violate § 5219. '(T)he bank share tax must be compared with * *  * the tax on capital invested by individuals in the shares of corporations whose business competes with that of national banks.' State of Minnesota v. First Nat. Bank, supra, 273 U.S. at page 564, 47 S.Ct. at page 469. In short, resulting discrimination in the effect of the tax is the test.

Moreover, these cases were both handed down prior to congressional enactment of the Home Owners' Loan Act of 1933, which is 'in pari materia' with § 5219 and appears 'to throw a cross light' (L. Hand in United States v. Aluminum Co. of America, 2 Cir., 1945, 148 F.2d 416, 429) on Michigan's savings and loan tax statute. The 1933 Act, permitting the creation of federal savings and loan associations, contained a provision respecting local taxation which stated in part:

Unless Congress had recognized that States taxing national bank shares were free, in spite of § 5219, to exempt their own savings and loan associations from local taxation, it would have used language similar or referring to § 5219, as it did in other federal statutes creating different types of thrift institutions. To insure that the federal creatures received the same benefits, if any, as state agencies, Congress tied the taxation limitations to state action affecting the latter rather than to § 5219. Although the federal statute was enacted prior to Michigan's savings and loan tax statute, its accommodation to such state measures, actual or potential, illustrates the assimilation by Congress of state savings and loan associations to their federal analogues, and not to the very different national fiscal institutions which national banks are. Furthermore, the power of the State to grant liberal tax treatment to its own associations, viewed even without the light of congressional action, is amply supported by the exemption doctrine of Mercantile Bank, supra, recognized as still vital long after Michigan's law of 1887 under which the savings and loan associations of that State are organized. These considerations weigh heavily in evaluating Michigan's enactment under § 5219.

Under this standard, Michigan's tax structure does not, in practical effect, result in any discrimination. Its system looks to the moneyed capital controlled by the shareholder. If it is a share in a bankn-either federal or state-the legislature considers the deposits available for investment and fixes a rate commensurate with that increased earning and investment power of the shareholder. The resulting tax is not on the assets of the bank, nor on deposits, but on the control the shareholder has in the moneyed capital market. Thus, controlling some 21 times the cash value of his share, a Michigan National shareholder pays the higher rate. On the other hand, a savings and loan shareholder controls no deposits. He has only the cash value of his share (and the comparatively minute reserves allowed by law), insofar as the moneyed capital market is concerned. Consequently he pays the lower rate. As the Michigan Bankers Association has indicated, this approach is realistic from a business standpoint, does not result in discrimination, is economically sound and is fair to each type of taxpayer. If it results, as it did in 1952, in giving Michigan National a tax advantage, it cannot complain.

It may be that at some future time, although the statistics indicate it to be improbable, the bank deposits may fall to such a level that the 5 1/2-mill rate would be violative of § 5219. But here we are concerned with only one year, 1952, and for that year the tax levied does not approach the permissible maximum. Such a possibility, however, may account for the action of the Legislature in setting the taxes at the lower than maximum levels now applied.

Having assumed the element of competition between Michigan National and the savings and loan associations, a prerequisite to the application of § 5219, and in the light of both the clear doctrine of our earlier cases and the phenomenal growth and earning power of appellant despite Act No. 9, we cannot say that its burden in 1952 was so heavy as would 'prevent the capital of individuals from freely seeking investment' in its shares.

We have considered appellant's other points and have concluded each is without merit.

Affirmed.

Mr. Justice STEWART took no part in the consideration or decision of this case.

Mr. Justice WHITTAKER, with whom Mr. Justice DOUGLAS joins, dissenting.