
    Request of House of Representatives,
    No. 6236.
    Opinion of the Justices.
    April 21, 1971.
   The following resolution was adopted by the House of Representatives March 31, 1971 and filed in this court on April 2, 1971:

“ Whereas, there is pending before the House of Representatives House Bill No. 156, An Act imposing a tax on the profits of corporations, and House Bill No. 381, An Act imposing a tax on the income of individuals; and

“Whereas, the rate of taxation in both of the above mentioned bills is five percent, but there is pending before the House of Representatives a proposed amendment to House Bill No. 381 to change the rate of taxation therein imposed to three percent; and

“ Whereas, questions have been raised as to constitutionality if both said bills are enacted, with House Bill No. 381 in amended form;

“ NOW THEREFORE BE IT

“Resolved, that the Justices of the Supreme Court be respectfully requested to give their opinion upon the following important question of law:

“ 1. If House Bill 156, as written, and House Bill 381, amended to change the rate of taxation thereby imposed to three percent, are both enacted, would any provision of the Constitution of the State of New Hampshire be violated?

“ Be it Further Resolved, that the Speaker transmit seven copies of this resolution, of House Bill No. 156 and of House Bill No. 381 to the Clerk of the Supreme Court for consideration by said court. ”

The following answer was returned:

To the House of Representatives:

The undersigned Justices of the Supreme Court return the following answers to your request for an opinion relating to House Bills No. 156 and No. 381, as contained in your resolution filed with this court on April 2, 1971.

House Bill 156 would establish a tax upon the profits of corpo - rations at a rate of five percent and House Bill 381 would impose a tax at the same rate upon the income of individuals. A proposed amendment to House Bill 381 would change the rate of the tax on individuals to three percent. The question presented to us is as follows: “If House Bill 156, as written, and House Bill 381, as amended to change the rate of taxation thereby imposed to three percent, are both enacted, would any provision of the Constitution of the State of New Hampshire be violated?”

The issue is whether corporations may be taxed upon income at the rate of 5%, as provided by House Bill 156, and individuals at a rate of 3%, as would be provided by House Bill 381, if it were amended as suggested by your resolution.

As we interpret House Bill 156, although it is phrased in terms of gross business profits, it would impose what is essentially a net income tax. Section 1, 77- C:l( III) ( a ), and (IV); section 1, 77-C:2; see P-H Federal Taxes Report, Bulletin 3, Extra Issue, January 25, 1971, Specimen Returns. House Bill 381, on the other hand would impose a gross income tax upon individuals. Section 1, 77-C:5; see P-H Federal Taxes Report, Bulletin 50, Extra Issue, December 15, 1970, Individual Specimen Returns.

For reasons more particularly set out in No. 6238, Opinion of the Justices returned herewith, we are of the opinion that no provision of the Constitution would be violated if the rate of the proposed tax upon corporate net income should differ from that of the proposed tax upon gross income of individuals, assuming of course the same income would not be taxed under both bills, which appears to be the case. For further elaboration, you are respectfully referred to the Opinion of the Justices in No. 6238, supra.

In expressing this opinion we note that House Bill 381 would repeal RSA ch. 77 (the tax on interest and dividends ) and RSA ch. 77-B(supp.) (the commuter’s income tax); and House Bill 156 would repeal RSA ch. 77,-A(supp. ) (the business profits tax). House Bill 156 would also allow as a credit against the tax which it imposes, any taxes paid under RSA chapters 82 (the taxation of railroads and public utilities), 83-B(supp.) (the franchise tax), 84 (the taxation of banks), and 402 (the taxation of insurance companies ). See Opinion of the Justices, 110 N.H. 117, 262 A.2d 290 (1970).

The answer to your question is “ No. ”

Frank R. Kenison.

Robert F. Griffith.

Laurence I. Duncan

Edward J. Lampron.

William A. Grimes.

April 21, 1971.  