Cary v. Savings Union
89 U.S. 38 (1874)

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U.S. Supreme Court

Cary v. Savings Union, 89 U.S. 22 Wall. 38 38 (1874)

Cary v. Savings Union, 89 U.S. 38 (1874)

89 U.S. (22 Wall.) 38

Syllabus

Where depositors in a savings bank do not receive a fixed rate of interest independently of what the bank itself may make or lose in lending their money, but receive a share of such profits as the bank, by lending their money, may, after deducting expenses &c., and that it has made, such share of profits is "dividend" within the meaning of the Internal Revenue Act of 1864, as amended by the Act of 1866, and not interest.

An act of Congress passed in 1864, as amended in 1866, enacted that there should be levied and collected a tax of five percentum on all dividends thereafter declared due, wherever and whenever the same should be payable to depositors as part of the earnings, income, or gains of any savings institution:

"Provided that the annual or semiannual interest allowed or

Page 89 U. S. 39

paid to the depositors in savings banks or savings institutions shall not be considered as dividends."

This statute being in force, Cary, Collector of Internal Revenue at San Francisco, demanded of the Savings Union, one of the savings banks of that city, a certain sum of money which had been assessed against the company as a tax for dividends paid by it to its depositors. The company refused to pay, alleging that they had paid no "dividends" to their depositors, and had only paid to them semiannual interest on their deposits. The collector, however, being about to distrain for the amount, the company paid it under protest, and now brought suit as for money thus paid under duress.

The Savings Union was this sort of institution:

It had a capital stock. Its business was to receive deposits, and in the contract under which they were received, provision was made for the accumulation of a reserve fund out of the profits earned, which was to be the property of the company. The capital stock, reserve fund, and deposits were also made, by the same contract, a common fund to be lent out by the company as opportunity offered. The stock and the reserve fund formed a guarantee capital for the security of the return of the deposits to the depositors.

At the expiration of every six months, the directors were required to ascertain the amount of the profits of the business, and after deducting certain salaries and expenses and setting apart a certain proportion, not exceeding one-tenth, to the stockholders as a compensation for furnishing the capital, apportion the remainder for a dividend upon the capital stock, reserve fund, and deposits, at such monthly or yearly rates as the total amount of net profits would permit. The dividend apportioned to each account was to be in proportion to the time the several amounts represented in the account formed part of the funds of the corporation, and the rate of dividends or ordinary deposits was to be increased by twenty percent to form the rate upon funds remaining permanently in the hands of the corporation, including what were denominated "term deposits." The

Page 89 U. S. 40

directors were also required to determine and make known from time to time a rate of interest to be paid to depositors who might wish to take such rate in lieu of dividends, on drawing out the balance of their accounts between one dividend day and another.

Each depositor at the time of opening his account, signed a contract printed on the first three leaves of the little passbook, which he then received. The contract was headed,

"Conditions of agreement on which deposits may be made with, and will be repaid by the San Francisco Savings Union."

And it contained a large number of provisions in regard to the returns which the depositor expected to get for his deposit. In these "conditions," these returns were always styled "dividends," as ex. gr., in the following, which was one of the conditions:

"Dividends will be payable during the six months following the half-year for which they may have been declared, in preference to deposits, . . . and all dividends not drawn within the first thirty days will share in the next dividend."

The question was whether the payments made to depositors, upon which the taxes now sought to be recovered were assessed and collected, were made as interest or as dividends of profits. The court below held them to be dividends, but held also that under an act of Congress to which it referred, and passed since the two acts above quoted, the dividends were not taxable. It accordingly gave judgment for the company, and the collector brought the case here.

The ruling of the court below as to the validity of the tax had, lately and since the judgment, been declared by this Court a wrong one, and the law declared to be that dividends were then still taxable. So that the only question now was whether the tax was laid on dividends or on interest. If on the former, the judgment was, of course, to be reversed, and a judgment entered below for the collector.

Page 89 U. S. 41

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