Page:Harvard Law Review Volume 32.djvu/644

608 of this state. Every act out of which those rights arose was done in this state. In order to enforce those rights, it was necessary for him to come into this state. Conceding that the deposit was a debt, conceding that it was intangible, still it was property in this state, for all practical purposes, and in every reasonable sense within the meaning of the Transfer Tax Act."

This case was followed in New York and in other juris- dictions.

In the New Hampshire case of Berry v. Windham a different reason was given for holding the deposit taxable where the bank was situated, and refusing to permit a tax at the domicile of the depositor. A resident of New Hampshire deposited money in a savings bank in Lawrence, Massachusetts, and it was held that no tax could be levied in New Hampshire. Judge Stanley said:

"When the plaintiff deposited his money in the Lawrence savings- bank, the division of the title thereby into legal and equitable owner- ship did not multiply its capacity for taxation. The division of the title did not increase the amount of taxable property, nor did it sub- ject the property, the title to which was thus divided, to the liability to be twice taxed."

These somewhat questionable methods of justifying taxation at the bank need, however, not be supported; for the Supreme Court of the United States has placed the doctrine on a much more satisfactory ground; although the argument used by the New York courts was given some weight also. "There is no doubt," said Mr. Justice Holmes, "that courts in New York and elsewhere have been loath to recognize a distinction for taxing purposes between what commonly is called money in the bank and actual coin in the pocket. The practical similarity more or less has ob- literated the legal difference." This is characteristic of the modern attitude toward the legal problems of taxation; which are treated in a practical rather than a technical way by the courts.

A bank account which is only temporarily within the state can- not be taxed; as, for instance, where it is deposited merely for the