United States v. Leslie Salt Company/Opinion of the Court

On February 1, 1949, Leslie Salt Company, being in need of funds to meet maturing bank loans and for working capital, borrowed $3,000,000 from the Mutual Life Insurance Company of New York and $1,000,000 from the Pacific Mutual Life Insurance Company. As evidence of the indebtedness Leslie Salt delivered to each insurance company its '3 1/4% Sinking Fund Promissory Note Due February 1, 1964' in these amounts. The question presented is whether these instruments are subject to the documentary stamp taxes laid on 'all bonds, debentures, or certificates of indebtedness issued by any corporation * *  * .' under §§ 1800 and 1801 of the Internal Revenue Code of 1939, 26 U.S.C.A. §§ 1800, 1801.

The Commissioner of Internal Revenue held the tax applicable, considering the two instruments to be 'debentures' within the meaning of § 1801. However, in a tax recovery suit instituted by Leslie Salt, following payment of the tax under protest and the Commissioner's denial of a refund, the District Court and the Court of Appeals held the instruments not to be 'debentures' or otherwise subject to stamp taxes. We brought the case here, 349 U.S. 951, 75 S.Ct. 885, 99 L.Ed. 1276, to resolve the uncertainty left by lower court decisions as to whether § 1801 applies to corporate notes of this type.

Except as to amounts and payees, the two instruments in question were in identical terms, having these principal features: (1) each instrument carried the promissory note description already indicated; (2) each had a maturity of 15 years; (3) each carried interest of 3 1/4% payable August 1 and February 1 of each year on the unpaid balance; and (4) each was subject to the terms of an underlying agreement containing elaborate provisions for the protection of the note holders. Among those provisions was one under which each insurance company could require Leslie Salt to convert its note, which was typewritten on ordinary white paper, into a series of new notes in denominations of $1,000 or multiples thereof, 'either in registered form without coupons or in coupon form, and in printed or in fully engraved form.' This option has not been exercised by either note holder.

These transactions with the two insurance companies constituted a variety of 'private placement,' a method of corporate financing which, because of its economies and conveniences, has become popular since the enactment of the Securities Act of 1933, 15 U.S.C.A. § 77a et seq. The Government claims that these notes are taxable under § 1801 either as 'debentures' or 'certificates of indebtedness.' The taxpayer, on the other hand, contends that these terms, undefined in the statute, do not include notes of the type here in issue. Taking the statute in light of its legislative and administrative history, we agree with the taxpayer's contention.

'Debentures' and 'certificates of indebtedness', along with other kinds of corporate securities, have been subject to stamp taxes since 1898, except for the period between 1902 and 1914. 'Promissory notes' were also subject to stamp duties from 1898 to 1901 and from 1914 until 1924, when the tax was repealed; it has never been re-enacted. The tax on 'promissory notes,' however, was always carried in a section separate from that containing the tax on 'bonds, debentures, or certificates of indebtedness', and was always at a rate lower than the tax on those instruments. Since promissory notes, debentures, and certificates of indebtedness all serve the same basic purpose-that is, as evidence of a debt-this former legislative distinction between promissory notes and the other instruments assumes significance in determining whether the present notes are taxable. For unless the earlier statutes were intended to impose two taxes on the same instrument, which we should not assume, or the present tax on debentures and certificates of indebtedness is broader in scope than that in effect in 1924, of which there is no indication, it would seem to follow that these notes should not now be taxed if they can be said to fall within the class of 'promissory notes' on which the tax was repealed.

The Government argues that the repealed promissory note provision related only to ordinary short-term paper customarily used in day-to-day commercial transactions, and that it did not embrace notes, like those here involved, of large amounts, long maturity, and secured by an elaborate underlying agreement. See General Motors Acceptance Corp. v. Higgins, 2 Cir. ,161 F.2d 593, 595. The existence of these features, however, does not render either of the Leslie Salt instruments any the less a promissory note, as each was captioned. Nor do we find anything in the earlier legislation or in its history which satisfies us that this type of note would not have been taxable at the lower rate provided in the promissory note section of the former statute. See Niles-Bement-Pond Co. v. Fitzpatrick, 2 Cir., 213 F.2d 305, 308 310. Moreover, the administrative interpretations of the Treasury, discussed below, affirmatively indicate that they would have been considered taxable under that section.

But even assuming that these notes could not fairly be called 'promissory notes,' it does not follow that they must therefore be regarded as 'debentures' or 'certificates of indebtedness.' That depends upon the meaning of those terms in the statute, and upon whether these notes, regardless of their descriptive caption, have the essential characteristics of 'debentures' or 'certificates of indebtedness', as those terms are used in the statute. General Motors Acceptance Corp. v. Higgins, supra; Niles-Bement-Pond Co. v. Fitzpatrick, supra. And in determining the scope of the statute, which has remained substnatially unchanged since its first enactment, the Treasury's interpretations of it are entitled to great weight. White v. Winchester Country Club, 315 U.S. 32, 41, 62 S.Ct. 425, 430, 86 L.Ed. 619.

The administrative history of the statute establishes that until 1947, when the General Motors case, supra, was decided, only thse instruments were considered subject to the 'debenture' tax which were issued (1) in series, (2) under a trust indenture, and (3) in registered form or with coupons attached. In other words, that tax was considered to apply only to marketable corporate securities, as that term is generally understood. Conversely, corporate promissory notes lacking any of those features, such as those issued by respondent, were taxed at the lower promissory note rate until that tax was repealed in 1924, and were not taxed thereafter until the Government's success in the General Motors case in 1947.

As early as 1918 the Treasury, in distinguishing instruments taxable at the 'bond' and 'debenture' rate from those taxable at the lower 'promissory note' rate, then still in force, drew the line as follows:

'(3) Instruments containing the essential features of a     promissory note, but issued by corporations in numbers under      a trust indenture, either in registered form or with coupons      attached, embodying provisions for acceleration of maturity      in the event of any default by the obligor, for optional      registration in the case of bearer bonds, for authentication      by the trustee, and sometimes for redemption before maturity,      or similar provisions, are bonds within the meaning of the      statute, whether called bonds, debentures, or notes. However,     a short-term instrument, although issued by a corporation      under a trust indenture, may be regarded as a note if every      instrument of such issue both (a) is payable to bearer and      incapable of registration and (b) lacks interest coupons and      so requires presentation upon each payment of interest.' T.D.      2713, May 14, 1918, 20 Treas.Dec.Int.Rev. 358 (1918).

When Congress in 1918 amended the existing statute by adding the language 'and all instruments, however termed, issued by any corporation with interest coupons or in registered form, known generally as corporate securities * *  * ,' still found in § 1801, the Treasury recognized that this was in effect an enactment of its prior restrictive interpretation. The regulations which followed the repeal in 1924 of the tax on promissory notes did not purport to enlarge the scope of the tax on 'bonds' or 'debentures'; the Treasury adhered to the same interpretation issued under the previous statute. The regulations were amended in 1941 to the less specific, but not inconsistent, form under which the present notes were taxed. Finally, explicit recognition that the attempt to tax notes not having the features of marketable corporate securities was a departure from prior Treasury practice is found in a ruling by the Commissioner of Internal Revenue that General Motors would not be applied retroactively:

'The Bureau has for a considerable period of time held that     an instrument termed 'note,' not in registered form and      issued without interest coupons, is not subject to the stamp      tax upon issuance or transfer. Because of this long and     uniform holding of the Bureau and the consequent reliance of      corporations on these rulings, it has been concluded that,      under the authority contained in section 3791(b) of the      Internal Revenue Code (26 U.S.C.A. § 3791(b)), the decision      in General Motors Acceptance Corporation v. Higgins, supra,      will not be applied retroactively, except that any tax which      has been paid on the issuance or transfer of instruments      falling within the scope of the decision will not be      refunded.' Cum.Bull.1948-2, M.T. 32, p. 160.

The term 'certificate of indebtedness' has a similar administrative background. Since 1920 the Treasury has considered certificates of indebtedness as akin to bonds and debentures, including 'only instruments having the general character of investment securities, as distinguished from instruments evidencing debts arising in ordinary transaction between individuals * *  * .' Sales Tax Rulings, L.O. 909, December 1920 ST. 1-20-85; Regs. 55 (Art. 14), October 26, 1920, 22 T.D.Int.Rev. 502 (1920). The essence of an 'investment security' is, of course, marketability, and this basic feature the Leslie Salt notes did not have. The Treasury itself has acknowledged that promissory notes lacking this quality have never been taxed as 'certificates of indebtedness', Cum.Bull.1948-2, M.T. 32, p. 160 (76 S.Ct. 422), and none of the lower court cases, including General Motors, supra, have regarded instruments such as the Leslie Salt notes as being certificates of indebtedness. Moreover, it may be observed that in the stamp tax sections of the Internal Revenue Code of 1954 the words 'certificates of indebtedness', consistenty with this administrative history, have been eliminated as a separate taxable category of corporate instruments, and are employed simply as a term of art embracing all the instruments taxed, that is, 'bonds,' 'debentures' and other instruments in registered form or with coupons. Internal Revenue Code of 1954, §§ 4311, 4381, 68A Stat. 514, 523, 26 U.S.C. 4311, 4381, 26 U.S.C.A. §§ 4311, 4381.

In contrast to the position it had consistently taken throughout the many years preceding the decision in the General Motors case, the Treasury now argues 'that Congress intended in Section 1801 to cover all long-term debt obligations supported by elaborate protective covenants and that this is so regardless of the details of the papers used, the language by which the transaction was consummated or the nature of the purchaser's business.' This contention seems to stem from the belief that had the 'private placement' method of financing been as widely known in 1924 as it is now, Congress would not have repealed the promissory note tax in its entirety, as it did. But if that be so it is nevertheless for Congress, not the courts, to change the statute. We must deal with the statute as we find it, and if these instruments are neither 'debentures' nor 'certificates of indebtedness' they may not be taxed under the present statute. These taxes are based not upon the nature of the transaction involved, but upon the character of the instruments employed. As long ago as 1873, this Court said: 'The liability of an instrument to a stamp duty, as well as the amount of such duty, is determined by the form and face of the instrument, and cannot be affected by proof of facts outside of the instrument itself.' United States v. Isham, 17 Wall. 496, 504, 21 L.Ed. 728.

There are persuasive reasons for construing 'debentures' and 'certificates of indebtedness' in accordance with the Treasury's original interpretation of those terms in this statute's altogether comparable predecessors. In Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796, Mr. Justice Cardozo said:

'administrative practice, consistent and generally     unchallenged, will not be overturned except for very cogent      reasons if the scope of the command is indefinite and      doubtful. United States v. Moore, 95 U.S. 760, 763, 24 L.Ed. 588; Logan v. Davis, 233 U.S. 613, 627, 34 S.Ct. 685, 58     L.Ed. 1121; Brewster v. Gage, 280 U.S. 327, 336, 50 S.Ct. 115, 74 L.Ed. 457; Fawcus Machine Co. v. United States, 282     U.S. 375, 51 S.Ct. 144, 75 L.Ed. 397; Interstate Commerce     Commn. v. New York, N.H. & H.R. Co., 287 U.S. 178, 53 S.Ct. 106, 77 L.Ed. 248 * *  * . The practice has peculiar weight      when it involves a contemporaneous construction of a statute      by the men charged with the responsibility of setting its      machinery in motion, of making the parts work efficiently and      smoothly while they are yet untried and new.'

Against the Treasury's prior longstanding and consistent administrative interpretation its more recent ad hoc contention as to how the statute should be construed cannot stand. Moreover, that original interpretation has had both express and implied congressional acquiescence, through the 1918 amendment to the statute (76 S.Ct. 421), which has ever since continued in effect, and through Congress having let the administrative interpretation remain undisturbed for so many years. See Corn Products Refining Co. v. Commissioner, 350 U.S. 46, 53, 76 S.Ct. 20, 24; Norwegian Nitrogen Products Co. v. United States, supra, 288 U.S. at page 313, 53 S.Ct. at page 357. Still further, it is an interpretation which is in accord with the generally understood meaning of the term 'debentures.' Cf. First Nat. Bank of Cincinnati v. Flershem, 290 U.S. 504, 508, 54 S.Ct. 298, 78 L.Ed. 465. 'The words of the statute (a stamp tax statute) are to be taken in the sense in which they will be understood by that public in which they are to take effect.' United States v. Isham, supra, 17 Wall. at page 504, 21 L.Ed. 728.

Construing the statute as we have, we conclude that the Leslie Salt notes are neither 'debentures' nor 'certificates of indebtedness' within its meaning. The fact that the agreement underlying these notes provides for the substitution of instruments which might qualify as debentures does not render these notes taxable, for until debentures are in existence the 'debenture' tax cannot be imposed.

We hold these notes are not subject to stamp taxes under the statute.

Affirmed.