CONCURRING OPINION. When a tax, by whatever name it may be called, must be paid by a business as an incident of the conduct of that business, and which must be met by what the business earns, it is in reality as much an expense necessary to the conduct thereof as would be any other essential business expenditure, and upon every consideration of *Page 44 just treatment shall be deductible as well in the calculation of the net income of the business. Even more so, for as to other expenditures the owner of the business has discretion and management, but as to taxes they are imposed in invitum, and are beyond the control of the management. And the funds necessary to meet income taxes are in effect never the funds of the business, but belong to the taxing authority as to which the owner of the business is in the meantime no more than a quasi-trustee. There is less excuse, therefore, for denying a deduction from gross income on account of taxes paid out of a business and which never in real fact belonged to the business than there would be in denying a deduction for the other actual and essential expenses incurred and paid out in its conduct.
And this being true, what difference does it make what kind of taxes is involved, and for the stronger reason what rational excuse, upon any basis of just treatment, is there for refusing to allow the deduction of income taxes, taken out of the business, and which, as already mentioned, never in real fact belonged to the business at all?
In view of all this, courts should not be called on to read into any statute, which runs so distinctly contrary to the considerations mentioned, anything which the words of the statute do not plainly compel, and more especially when the doubtful inclusion would bear upon only a particular class, rather than upon all alike. Technically speaking, an excess profits tax may be a species of income tax, but the ordinary rather than the technical sense is to be preferred in the interpretation of statutes, and as shown in the principal opinion, it took a special amendatory provision in a congressional act, recently passed, to put this particular matter out of doubt in the federal field. Would it not, therefore, require a similar express state enactment, effective only for the future, to take it out of doubt as to our state statute? *Page 45
Inasmuch as taxing statutes are to be construed strictly, and all doubts resolved, in favor of the taxpayer, it follows that the rule would have to be reversed and the doubt resolved against the taxpayer, and a particular class of taxpayers at that, if this new and abnormal tax, called the excess profits tax, is not one for which the taxpayer may take deduction, and not only this, but as stated, the doubt would be resolved so as to work would be a palpable injustice. I have therefore concluded that the principal opinion is sufficiently well grounded to justify a concurrence in it.