No. 13608

I N THE SUPREME COURT OF THE STATE OF M N A A O T N

BAKER NATIONAL INSURANCE AGENCY, e t al.,

P l a i n t i f f s and A p p e l l a n t s ,

M N A A DEPARTMENT OF REVENUE, O T N

Defendant and Respondent.

Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t , H o n o r a b l e Gordon R. Bennett, Judge p r e s i d i n g .

Counsel o f Record:

For Appellants:

Towe, B a l l & E n r i g h t , B i l l i n g s , Montana N e i l Enright argued, B i l l i n g s , Montana

For Respondent :

R. B. McGinnis a r g u e d , H e l e n a , Montana

Submitted: September 26, 1977

---i Decided: N ( j V 22 jn g , Filed: '$b\' d ~ d d!] Mr. Justice Frank I. Haswell delivered the Opinion of the Court.

Appellants appeal from the denial of their petition to file consolidated tax returns for the taxable year 1972. We affirm.

On June 29, 1973, the Department of Revenue issued deter- mination letters on appellants Bozeman Insurance Agency, Inc.,

Baker National Insurance Agency, Inc., and Baker National Bank,

denying them permission to consolidate for the taxable year 1972. On July 25, 1973, these appellants filed timely protests and petitioned

for a re-evaluation of the determination letters. The petition was

denied.

On September 11, 1973, respondent issued determination let- ters on appellants Roundup Insurance Agency, Inc., Miners & Merchants Bank, Robert Agency, Inc., First Security Bank of Red Lodge and Red Lodge Insurance Agency, Inc., denying them permission to file con- solidated returns. Again, protests were timely filed and denied by respondent.

Subsequently, all appellants were joined for a single appeal before the State Tax Appeal Board (STAB) on December 18, 1973. On March 19, 1974, following submission of briefs by both parties, STAB

rendered its opinion and order, wherein it found appellants were not eligible to file consolidated returns because:

(1) Permission was not granted by respondent pursuant to section 84-1509, R.C.M. 1947; and

(2) Appellants do not qualify as a "unitary business" as defined by section 84-1509, R.C.M. 1947. Appellants' request for reconsideration by STAB was denied by an order dated May 13, 1974. Thereafter, on May 17, pursuant to

the provisions of section 84-709.1, R.C.M. 1947, as amended, appel- lants petitioned the District Court of the FhstJudicial District for review of the STAB decision. The STAB decision was affirmed by the

District Court on September 23, 1976. During the tax year in question, the controlling interest in all corporations involved herein was owned by one entity. The appellant corporations were engaged in the banking and insurance businesses in four Montana cities. A similar mode of operation was used in each of these cities whereby a parent-subsidiary relationship was created between the insurance agency and the bank. Each insurance agency acted as a one-bank-holding-company and owned in excess of 80 percent of the stock of its subsidiary bank. The insurance agencies provided managerial services to their respec- tive banks and charged a fee for the services rendered. Each bank owned its building and provided office space to the insurance agency through a rental agreement. The relationship of the appellant cor- porations may be set forth as follows:

Tax year in Parent Company Subsidiary Lowest % of question ownership (1) (2) 1968-1972 Roundup Insurance Agency Robert Agency, Inc. 100% Robert Agency Montana Nat'l Bank of Roundup (3) 91% (1969)

1970-1972 Red Lodge Ins. Agency, Inc. Mont. Nat'l Bk of Red Lodge(4) 87.3%

1972 Bozeman Ins. Agency, Inc. Mont. Nat'l Bk of Bozeman 96.6%

1972 Baker Nat'l Ins. Agency Baker Nat'l Bk 94.4% [l] Formerly Woodbury Investment Corporation - renamed in 1969. [2] ~i~uidated 1969 by transferring all assets to Woodbury Invest. Corp. in [3] Formerly Miners & Merchants Bank. [4] Formerly First Security Bank of Red Lodge.

The management fees paid by the banks to the insurance agencies were arbitrarily determined and not at arms length. Similarly, the rent paid by the insurance agencies to the banks was arbitrarily determined. The acknowledged purpose for the bank- insurance agency relationship was to provide a medium by which pro- fit and loss could be shifted between the corporations by means of the management fees and rent. Appellants sought permission from respondent to file con- s o l i d a t e d corporate l i c e n s e t a x r e t u r n s f o r each insurance

agency and i t s s u b s i d i a r y bank. Respondent t o o k t h e p o s i t i o n

appellants did not qualify t o f i l e consolidated returns pursuant

t o t h e r e q u i r e m e n t s o f s e c t i o n 84-1509, R.C.M. 1947.

A p p e l l a n t s a p p e a l e d t o STAB and STAB h e l d t h a t s e c t i o n 84-1509 d o e s n o t g r a n t t a x p a y e r s a n a b s o l u t e r i g h t t o f i l e

consolidated r e t u r n s , b u t r a t h e r gives respondent t h e d i s c r e t i o n -

a r y a u t h o r i t y t o d e t e r m i n e when c o n s o l i d a t e d r e t u r n s a r e appro-

priate. STAB c o n c l u d e d by h o l d i n g a p p e l l a n t s d i d n o t q u a l i f y a s

a u n i t a r y b u s i n e s s a n d , t h e r e f o r e , were n o t e l i g i b l e t o f i l e con-

solidated returns.

Two i s s u e s a r e b e f o r e t h i s C o u r t on a p p e a l :

1. Whether t h e p a r e n t - s u b s i d i a r y c o r p o r a t i o n s a r e con-

d u c t i n g a u n i t a r y b u s i n e s s a s d e f i n e d by s e c t i o n 84-1509, R.C.M.

2. Whether r e s p o n d e n t h a s t h e d i s c r e t i o n a r y a u t h o r i t y t o

d e t e r m i n e when c o n s o l i d a t e d r e t u r n s are a p p r o p r i a t e .

T h i s c a s e c e n t e r s around an i n t e r p r e t a t i o n of s e c t i o n 84-1509, R.C.M. 1947, which s t a t e s i n p a r t :

" ( 1 ) C o r p o r a t i o n s which a r e a f f i l i a t e d may n o t f i l e a consolidated return unless a t l e a s t e i g h t y p e r c e n t ( 8 0 % ) o f a l l classes o f s t o c k o f e a c h c o r p o r a t i o n i n v o l v e d i s owned d i r e c t l y o r i n d i r e c t l y by o n e (1) o r more members of t h e a f f i l i a t e d group.

" ( 2 ) C o r p o r a t i o n s may n o t f i l e a c o n s o l i d a t e d return unless the operation of the a f f i l i a t e d g r o u p c o n s t i t u t e s a u n i t a r y b u s i n e s s and p e r m i s - s i o n t o f i l e a c o n s o l i d a t e d r e t u r n i s g i v e n by t h e s t a t e department of revenue. For purposes of t h i s section, a ' u n i t a r y business operation' means o n e i n which t h e b u s i n e s s o p e r a t i o n s con- d u c t e d by t h e c o r p o r a t i o n s i n t h e a f f i l i a t e d group a r e i n t e r r e l a t e d o r i n t e r d e p e n d e n t t o t h e e x t e n t t h a t t h e n e t income o f o n e c o r p o r a t i o n cannot reasonably be determined without r e f e r e n c e t o t h e o p e r a t i o n s c o n d u c t e d by t h e o t h e r c o r p o r - ations.

" ( 3 ) I f t h e c o n d i t i o n s o f s u b s e c t i o n s (1) and ( 2 ) of t h i s s e c t i o n a r e m e t , t h e state department of r e v e n u e may r e q u i r e c o r p o r a t i o n s t o f i l e a con- s o l i d a t e d r e t u r n when t h e d e p a r t m e n t c o n s i d e r s a consolidated r e t u r n necessary." Section 84-1509 contains three conditions that must be fulfilled prior to filing a consolidated tax return: (1) Common ownership of at least 80% of all classes of stock of each affiliated corporation; (2) A unitary business operation; and (3) Permission from the Department of Revenue to file a

consolidated tax return. The record reflects appellants fulfill the 80% ownership requirement as to all the involved corporations. The crux of appellants' first issue, however, is the District Court's finding that appellants were not conducting a unitary business for the tax year in question. A test for the identification of a unitary business oper- ation is found in section 84-1509(2) wherein it is stated: " * * * a 'unitary business operation' means one in which the business operations conducted by the corporations in the affiliated group are inter- related or interdependent to the extent that the net income of one corporation cannot reasonably be determined without reference to the operations conducted by the other corporations." Substantial and convincing evidence is found in the record to support the District Court's finding that appellants were not conducting a unitary business operation for the taxable year 1972. Examples of such evidence are: (1) Mr. Les Alke, the Administrator of the Financial Division of the Department of Business Regulations of the State of Montana, testified as follows: "Q. Would you say that in the case of one of the banks in question, you could reasonably determine its net income, standing alone and separate -- just of the banking institution, itself? A. It's practically a requirement in reporting income expense and performance and solvency and what have you. We do not allow them to intermingle other business accounting or operations with the bank's records. "Q. Even if it's an insurance agency operating in the same building, they would have to keep their books and records separate? A. Absolutely. "Q. Are you familiar with Section 84-1509, R.C.M. 1947, dealing with consolidated returns? A. To some extent, yes. "Q. You have read the statute? A. Yes, I have. "Q. Would it be your opinion, based on some 20 years as a bank examiner and working in this field, that with a bank and an insurance company in this situation, you could reasonably determine the net income of the bank without reference to the operations conducted by the insurance company? A. Without a question. " (2) Harry A. Maschera, Chief Insurance Examiner for the Montana State ~uditor'sOffice, testified in regard to the independence of the insurance agencies' net income: "Q. Is it your opinion, as a regulation of the in- surance agencies, that a corporation which is an insurance agency and a parent holding company of a bank, is it your opinion that they would not be able to file or would not be able to determine their net income without reference to the operations of the bank? A. The insurance company would be required to determine their net income." (3) Mantz Hutchinson, Assistant Administrator of the property assessment division, Department of Revenue, who had recently completed an audit of one of the appellant banks was also called to testify. Upon questioning, Mr. Hutchinson stated in his opinion the income of the banks could be determined standing alone: "Q. In determining the net income of the bank in question, was it necessary for you to look at the activities of the insurance company located with that bank? A. No, it was not. "Q. Are you familiar with Section 84-1509, R.C.M. 1947? A. I am. "Q. Would it be your opinion after just recently conducting an audit of this corporation, that you were able to determine the net income of that cor- poration without reference to the operations con- ducted by the other corporations; namely, the insurance company? A. Yes, we were." The evidence is abundantly clear the business operations of the insurance agencies are not so interrelated or interdependent with the banks' operations that the net income of such agencies cannot reasonably be determined without reference to the banks' operations. Conversely, the banks' operations are not inter- dependent on the operations of its parent insurance agencies. We, therefore, hold the record contains substantial evidence to support the District Court's finding that appellants were not conducting a unitary business operation. Appellants' second issue is that the District Court erred by holding respondent did not abuse its discretion by denying appellants' request for permission to file a consolidated tax return. The crux of this issue i.s a determination of whether the Department of Revenue may exercise its discretion in grant- ing permission to file a consolidated tax return to an otherwise qualified unitary business, or whether it is mandatory that such permission be granted once the business meets the 80% common stock ownership test and proves its business operation is unitary in nature. The cardinal principle of statutory construction is that the intent of the legislature is controlling. Section 93-401-16, R.C.M. 1947; Montana Association of Underwriters v. State of Montana, Mont. , 563 P.2d 577, 34 St.Rep. 297 (1977); Keller v. Smith, Mont. , 553 P.2d 1002, 33 St.Rep. 828 (1976); Dunphy v. Anaconda Co., 151 Mont. 76, 438 P.2d 660 (1968), and cases cited therein. In the instant case, the plain meaning of the statute is not readily gleaned from its language. We, there- fore, resort to material supplementary to the statute in order to detern~inelegislative intent. The committee records maintained

in conjunction with the consideration of and the ultimate passage of section 84-1509 clearly reveal the legislative intent of this section. The following entry, which relates to the section in- volved herein, is found in the January 23, 1969, record of the Ways and Means Committee meeting: "Howard Vralstad, Director of Income and License Tax Department spoke briefly and stated under existing law it is left entirely up to the State Board of Equalization whether to allow a corporation to file a consolidated return. This bill just makes into law the regulations the Board is now following." We, therefore, hold section 84-1509, R.C.M. 1947, is permissive rather than mandatory and respondent did not abuse its discretion in denying appellants' request for permission to file a consolidated return. Affirmed.

Justice

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