Petition to Review a Decision of the Tax Court of the United States.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
This petition to review a decision of the Tax Court requires us to determine whether it was error to deny the petitioner a credit under § 131 of the Revenue Act of 1934, 26 U.S.C.A. Int. Rev. Acts, page 713, taken in its return of income for 1935, for taxes paid or accrued to a foreign country.
Sec. 131 insofar as material provides: "(a) Allowance of Credit. If the taxpayer signifies in his return his desire to have the benefits of this section, the tax imposed by this title shall be credited with: (1) Citizen and domestic corporation. In the case of a citizen of the United States and of a domestic corporation, the amount of any income, war-profits, and excess-profits taxes paid or accrued during the taxable year to any foreign country or to any possession of the United States * * * ."
The credit was claimed in the amount which a wholly owned British subsidiary of the petitioner had deducted, as permitted under British law, from royalty payments due the petitioner under a license contract covering British patents the petitioner owned.
The facts found by the Tax Court may be stated as follows:
The petitioner is a New York corporation which during the taxable year 1935 was the owner of three British patents relating to the manufacture of air chutes and parachutes. It likewise was the sole owner of an English subsidiary company, to which by an agreement executed in 1926 it gave an exclusive license to manufacture air chutes under these patents and to sell them to the British Government. The consideration for this license was the payment of fifteen thousand pounds and a royalty of ten per cent of the sale price of each air chute marketed. By agreement in 1933 the royalty was increased to twelve per cent.
For convenience all sums will here be expressed in terms of American dollars. In 1935 the licensee sold air chutes at an aggregate price of $946,218.33, upon which the twelve per cent royalty amounted to $113,546.20. It rendered monthly accounts showing gross royalties earned, sums withheld by it (and designated in the petitioner's journal entries as "British tax paid at source"), and net royalties remitted. The amounts withheld for 1935 totaled $25,547.88, and the net royalties paid aggregated $87,998.32.
On its federal income tax return for the tax year 1935 the petitioner reported as income the full amount of its gross royalties earned under its contract with the subsidiary company. Attached to the return was the authorized form on which the petitioner claimed the sum of $25,547.88 as taxes paid by it to the British Government upon the gross royalties, and of that amount it claimed $25,347.53 as a credit on its income tax due to the United States after application of the limitation upon such credit specified in § 131(b) of the Revenue Act of 1934. The Commissioner denied the claim for credit and held that instead the petitioner's reported income from royalties paid by the English subsidiary should be reduced to the amount actually received from the licensee.
The sums withheld by the subsidiary company were paid by it to the British Inland Revenue Collector pursuant to schedule D of the Income Tax Act, 1918 (8 & 9 Geo. 5, c. 40), which as amended by each subsequent annual finance act through the Finance Act, 1936, embodied the income tax law in force in Great Britain at the time of the payment to the collector.
Section 1 of the 1918 Act provides that income taxes shall be charged "in respect of all property, profits, or gains respectively described or comprised in the schedules marked A, B, C, D, and E, contained in the First Schedule to this Act and in accordance with the Rules respectively applicable to those Schedules." Section 1 of schedule D designates as subject to the tax "(a) the annual profits or gains arising or accruing * * * (iii) to any person, whether a British subject or not, although not resident in the United Kingdom, from any property whatever in the United Kingdom, or from any trade, profession, employment, or vocation exercised within the United Kingdom; and (b) all interest of money, annuities and other annual profits or gains not charged under Schedule A, B, C or E and not specifically exempted from tax * * * ."
A brief review of the history of British income taxation is essential if the modern statutes are to be intelligently interpreted. Beginning with the Income Tax Act, 1803 annuities and interest and other annual payments charged upon profits made taxable by schedule D were not deductible by the taxpayer in computing his tax, but the latter could recover a portion of the tax by deducting it upon paying the annuity or interest to the recipient. The Act of 1842 provided that no assessment was to be made upon the recipient of sums paid out of taxable profits or gains, but that all of such profits or gains were to be charged on the person liable to make the annual payments, and he in turn might deduct the amount of the tax from the payment. The Customs and Inland Revenue Act, 1888, obliged any person paying annuities or interest, if they were not payable out of taxable profits or gains, to deduct the tax from the payments and to account to the Crown for the tax deducted.
This provision was first made applicable to royalties in 1907. Under the Finance Act of that year a person paying royalties, who previously had been permitted to deduct them as a business expense, was obligated to withhold from his payments the amount of the tax thereon, if the sum was not payable out of taxable profits or gains. If it ...