
    The Corner Co., Appellant, v. Bowers, Tax Commr., Appellee.
    (No. 34365
    Decided January 18, 1956.)
    
      Mr. Bert D. Bradley and Messrs. Boer, Mierke, Thomas, McClelland & Handy, for appellant.
    
      Mr. C. William O’Neill, attorney general, Mr. Jack H. Bertsch and Mr. W. E. Herron, for appellee.
   Per Curiam.

According to the record, the appellant company’s first contention is that it was not doing business in Ohio during the four years involved. No franchise tax return was made therefor.

Most of the controlling facts are not in dispute.

The present Delaware corporation is the successor of an Ohio corporation of the same name. On October 1, 1948, the old corporation transferred its assets to the new. These consisted of real estate, bank deposits, accounts receivable, notes, patent rights, three automobiles, etc. One of the automobiles is kept in Florida for the personal use of the company president, and the other two are kept and used in Ohio. No office is maintained in Delaware or elsewhere outside Ohio, and all officers reside in Ohio. The company has no bank account or any of its business transactions outside Ohio. Company expenses are billed to and paid from Cleveland. All income is deposited in Cleveland banks. For the years 1949,1950 and 1951, the respective amounts were $40,592.97, $48,346.96 and $44,278.24. The company dividends have been declared and paid in Ohio.

Does this constitute doing business in Ohio? Was the appellant company’s property “acquired or held as means or instruments for carrying on the business,” within the purview of Section 5325-1, General Code (Section 5701.08, Revised Code)?

This court concurs in the following reasoning of the Board of Tax Appeals:

“Under the proof.made and errors assigned it conclusively appears that all of appellant’s assets and property, save its patents and its ‘experimental and development account,’, are and have had a continuous situs in this state. The two excepted items have been accorded a situs elsewhere. Throughout these tax years the state of Ohio and its local subdivisions have afforded protection to appellant and its property. Keeping in mind the facts, that practically all of appellant’s corporate activity has been done in Ohio, that no business is done elsewhere, that all its earnings and moneys are deposited in its two Ohio accounts, that appellant’s directors and corporate officials reside in Ohio, that its president, an Ohio resident, is the only one empowered to check against its accounts, and that all disbursements are made within Ohio and nowhere else, it follows that appellant’s property assessed is within the franchise tax base. It has a situs within this state even though it be a foreign and not a domestic corporation.”

This conclusion is consistent with the decision of this court in the case of Aluminum Co. of America v. Evatt, Tax Commr., 140 Ohio St., 385, 45 N. E. (2d), 118. Paragraphs one and two of the syllabus read:

“1. The franchise tax levied pursuant to Sections 5498 and 5499, General Code, on a foreign corporation is for the privilege of doing business in this state or owning a part or all of its capital or property in this state or for holding a certificate compliance with the laws of this state authorizing it to do business in this state. (Section 5495, General Code.)
“2. 'Doing business’ in this state is only a pant of the privilege taxed under Section 5495, General Code. The tax also covers the privilege of owning a part or all of the foreign corporation’s capital or property in this state as well as the privilege of holding a certificate of compliance with the laws of this state.”

The appellant company’s next contention is that, even if doing business in Ohio, its Cleveland bank deposits have a foreign situs and therefore should not be included in the franchise tax base. This is answered by the following pronouncement in the first paragraph of the syllabus in the case of C. F. Kettering., Inc., v. Evatt, Tax Commr., 144 Ohio St., 419, 59 N. E. (2d), 370.

“1. A corporation, organized under the laws of another state but carrying on its principal corporate activities within Ohio, is subject to a franchise tax in this state, measured by the income and returns from its investments without Ohio, where it appears that such income and returns were received, handled and disbursed entirely by those operating its Ohio office, and a decision of the Board of Tax Appeals to that effect will not be reversed as unreasonable or unlawful.”

The appellant quotes and relies on the second paragraph of that syllabus relating to particular facts which, however, are readily distinguishable from those in the instant case. In that opinion it is stated that “no claim is made in this case that appellant’s incorporation in the state of Delaware was not bona fide, or that its domicile there was purely a ‘ paper domicile. ’ ’ ’ In the instant case the opposite claim is made since the company formerly was incorporated in Ohio and then when it was incorporated later in Delaware no change whatsoever was made in the operation of its business. Furthermore, in the cited case the company had an office in Delaware, it owned real estate in Michigan, and its bank deposits were used in transacting its business in and outside Ohio. In the instant case the company’s real estate is in Ohio, and its bank deposits are received and disbursed in Ohio alone.

The appellant further insists that, since it is a Delaware corporation, its notes receivable have a tax situs in that state. However, these notes resulted from several transactions, all of which occurred in Cleveland and none in Delaware. There is nothing in the record tending to sustain this contention.

The final complaint is that the Tax Commissioner was compelled to accept the appellant’s depreciated book value of its factory building. The complete answer to this is apparent when it is disclosed that the appellant’s figure is a mere $3,514.53 although the acquisition price was $119,239.86 and the rental returns thereon for 1949 were $21,943.37, for 1950, $31,203.34, and for 1951, $28,000. Section 5498, G-eneral Code (Section 5733.05, Revised Code), authorizes the Tax Commissioner to determine “proper and reasonable reserves for depreciation and depletion,” and there is nothing whatsoever to sustain this contention of the appellant.

Under the particular facts of this case, the decision of the Board of Tax Appeals is neither unreasonable nor unlawful and must be affirmed.

Decision affirmed.

Weygandt, C. J., Matthias, Hart, Zimmerman and Bell, JJ., concur.

Stewart and Taet, JJ., concur in part and dissent in part.

Taft, J.,

dissenting in part and concurring in part. Although appellant apparently contended before the Board of Tax Appeals that it was not subject to payment of the Ohio franchise tax because it was not “doing business in Ohio,” a reading of appellant’s brief in this court discloses that no such contention was made in this court. In disposing of that contention, the Board of Tax Appeals said: Standard Carloading Corp. v. Glander, Tax Commr., 152 Ohio St., 404, and C. F. Kettering, Inc., v. Glander, Tax Commr., 155 Ohio St., 356, leave this board with considerable donbt as to whether appellant was doing business in this state. That doubt must be resolved in the taxpayer’s favor. But this conclusion cannot be the end of this controversy. ’ ’

“Having in mind from the proof offered on evidence that all taxable assets of appellant * * * -were acquired at the time of its organization, and are now held by appellant solely for the purpose of collecting rentals, interest and principal for the benefit of appellant’s stockholders, this board is unable to say or find that appellant was engaged in business in Ohio over the periods assessed. Careful reading of Cliffs Corp. v. Evatt, Tax Commr., 138 Ohio St., 336, and what has been thereafter said in

Reference was then made by the board to the portions of the syllabus in Aluminum Co. of America v. Evatt, Tax Commr., 140 Ohio St., 385, 45 N. E. (2d), 118, stating that the franchise tax is levied not only “for the privilege of doing business in this state” but also for “the privilege of owning a part or all of the foreign corporation’s capital or property in this state.” It was therefore held that, since appellant owned property in Ohio, an Ohio franchise tax could be levied against it. That conclusion is not challenged in this court.

The following findings were also made by the Board of Tax Appeals:

“Appellant * * * since its formation in 1948, owned three automobiles, two of which are maintained in Ohio and one in Florida, and are said to be used in company business or for the use of H. T. Bradner, the president and treasurer * * *. It owns the real estate now under lease * * * and collects the rents therefor. It owns * * * two notés and collects the payment of interest thereon. The same is true of other accounts receivable. All collections so made and sums received are deposited in two Cleveland banks [the National City Bank and the Union Bank of Commerce]. It has held no meetings in Delaware. All meetings have been held in Ohio or Florida in accordance with the pleasure of the company president, H. T. Bradner. Mr. Bradner is a resident of Cleveland, spending part of his time in Florida. All company officers reside in Ohio. It has no bank accounts, office or place of business, or does any business, outside of Ohio. It has no property outside of Ohio other than the one automobile in Florida, and its ‘patents’ and ‘experimental and development account’ which the Tax Commissioner has accorded a non-Ohio situs in his final order. H. T. Bradner, as president and treasurer, is the only one authorized to check against and disperse the two Cleveland bank accounts. The company has an accountant on a part-time basis. Bradner, as president, has established a third bank account in the accountant’s name. The accountant from this petty cash deposit pays all bills and company expenses. Bradner keeps this account at all times near $1,000 in amount.”

The first contention made by appellant in this court is that its bank accounts in the National City Bank and the Union Bank of Commerce constituted general reserves and should not be considered in determining franchise tax. In support of this contention, appellant cites paragraph two of the syllabus of C. F. Kettering, Inc., v. Evatt, Tax Commr., 144 Ohio St., 419, 59 N. E. (2d), 370. This paragraph of the syllabus and the decision rendered in that case fully support this contention. That paragraph of the syllabus reads:

“Under the provisions of Sections 5498, 5328-1 and 5328-2, General Code, as they are connected and related, a general bank deposit or account maintained in Ohio by a corporation organized under the laws of another state and used by it for the purposes of its business generally, within and without Ohio, may not be included in the base for the computation of the franchise tax to be collected from such foreign corporation, even though such deposit or account may fluctuate in amount and the funds therein are withdrawable by the Ohio officers or agents of the corporation.”

It was said in the opinion by Zimmerman, J., at pages 425 and 426:

“Reading Sections 5328-1 and 5328-2, General Code, as they are connected with Section 5498, they mean that Ohio bank deposits of a foreign corporation or other nonresident are to be accorded an Ohio situs for the imposition of franchise taxes where they are used exclusively in business transacted in Ohio and are withdrawable by an officer or agent having an Ohio office. It logically ensues that where Ohio bank deposits of a foreign corporation are used by it in transacting its business generally, within and without Ohio, the sections do not contemplate that such deposits shall be taxed locally.
i i * # *
“In other words, where a foreign corporation opens and keeps a general account in an Ohio bank and uses it in its business everywhere', such account is not taxable in this state, even though withdrawable by officers and agents in Ohio. Here, it is to be remembered that the funds in the Winters National Bank & Trust Company represented appellant’s sole bank account. Having no other bank account, such account necessarily represented appellant’s general balance — the amount remaining at any time after charging withdrawals against deposits.
“We conclude, under the circumstances, that appellant’s bank account was not subject to a franchise tax in Ohio. If the matter were to be viewed differently, we can conceive of complications and difficulties in the field of taxation which might be encountered by corporations organized under the laws of Ohio maintaining general bank deposits in other states used in the conduct of their businesses generally.”

In the instant case there were three bank accounts in Ohio instead of merely one. However, the findings of the Board of Tax Appeals are to the effect that “all bills and company expenses” were paid from the “petty cash deposit” in the accountant’s name and not from the accounts in the National City Bank and the Union Bank of Commerce. It would seem obvious therefore that those two latter bank accounts necessarily represented a foreign corporation’s “general balance” as much if not more than did the single bank account involved in the Kettering case. It may be observed further that, although Judge Zimmerman’s opinion recognizes the right of according an Ohio situs for the imposition of franchise taxes to deposits “where they are used exclusively in business transacted in Ohio” and certain other conditions are met, the Board of Tax Appeals in the instant case has specifically found that appellant was not even “doing business in this state.”

Appellant’s second contention in this court is “that notes receivable which were in existence at the time of the formation of this appellant, and which were taken over by this appellant on its original formation, have a situs in the state of Delaware and should not be included in determining franchise tax, under authority of” paragraph one of the syllabus of C. F. Kettering, Inc., v. Glander, Tax Commr., 155 Ohio St., 356, 98 N. E. (2d), 793. That paragraph of the syllabus and the unanimous decision in that case fully support appellant’s contention. That paragraph of the syllabus reads:

“Where a corporation organized under the laws of Delaware in 1925 for the purposes, among others, of buying, selling and trading in investments, at the time of its incorporation exchanged all its authorized capital stock for blocks of stocks and bonds owned by an individual, and that corporation over a period of years sells and trades in investments and by such dealings disposes of all the bonds and some of the stock so acquired at the time of its organization but does not dispose of certain of the blocks of stock so acquired, those blocks of stock continuously retained from the time of incorporation do not have a situs for franchise tax purposes in Ohio in which state the principal office of the corporation is and was at all times located and from which office all its business activities are and were conducted.”

Appellant’s third contention in this court is “that on its original formation, it acquired a factory building having a book value of $3,514.53, and that that was this company’s book value, and that, in any determination of franchise tax,” that book value cannot be increased by the Tax Commissioner. We believe that this contention is disposed of by the following findings of the Board of Tax Appeals, which, on the record, do not appear to be either unreasonable or unlawful:

“From the evidence before the board it is not clear that appellant * * * keeps any books. If appellant did keep a set of books, the examiner * * * never saw them. No such books are in evidence. * * * * appellant made no franchise tax returns over the years in question.” Cf. National Tube Co. v. Peck, Tax Commr., 159 Ohio St., 98, 111 N. E. (2d), 11.

Stewart, J., concurs in the foregoing opinion by Taut, J.  