The alleged contract between the plaintiff and defendant here involved was before the United States Tax Court on the defendant company's effort to justify, as "ordinary and necessary expenses" of its trade or business, payments made by it to the plaintiff under the contract. The Tax Court found that the contract was without consideration; that the payments made thereunder by the taxpayer (the defendant company) were gratuities; and, that they were therefore not deductible from the defendant's gross income for tax purposes.
I am no more able to find consideration for the alleged contract than was the Tax Court whose findings *Page 599 were by reference expressly incorporated in the plaintiff's petition for a declaratory judgment. Consequently, so far as the merits of the case are concerned, I should reverse the judgment of the court below. But, my further view is that the merits of the case, whatever they may be, never became actionable in this proceeding.
The facts do not present a case for the exercise of the court's declaratory judgment jurisdiction. No actual controversy is pleaded or present. The necessity of such a controversy as the basis for a declaratory judgment proceeding has long been recognized generally. True enough, the requirement was not, in terms, expressly included in our original Declaratory Judgments Act of June 18, 1923, P. L. 840 (12 Pa.C.S.A. § 831 et seq.). But, in Kariher's Petition (No. 1),284 Pa. 455, 131 A. 265, where that Act was considered and upheld, it was pointed out (p. 471) ". . . that, in all jurisdictions where declaratory-judgment practice obtains, the rule is established . . . that jurisdiction will never be assumed unless the tribunal appealed to is satisfied that an actual, controversy, or the ripening seeds of one, exists between parties, all of whom are sui juris and before the court, and that the declaration sought will be a practical help in ending the controversy: [citing cases]. . ." And, the amendatory Act of April 25, 1935, P. L. 72, expressly made the existence of "an actual controversy" a prerequisite to a court's exercise of declaratory judgment jurisdiction by substituting, inter alia, for Sec. 6 of the Act of 1923 the following, — "Relief by declaratory judgment or decree may be granted in all civil cases where an actual controversy exists between contending parties, or where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or where in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that there is a challenge or denial of such asserted *Page 600 relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment or decree will serve to terminate the uncertainty or controversy giving rise to the proceeding."1
There is not now nor has there ever been any controversy between the parties to the record in this proceeding either as to the alleged contract or as to the plaintiff's right to the moneys which she claims thereunder. Throughout the contest over the defendant company's tax liability with the Commissioner of Internal Revenue and before the Tax Court, including the rehearing granted on the defendant company's petition, the latter at all times asserted and endeavored to maintain the validity of the alleged contract and the plaintiff's rights thereunder as claimed by her. Even in the present proceeding the defendant by its answer sought to make a showing of facts more favorable to the plaintiff's claim than she herself had averred in her petition. There is certainly no controversy between the plaintiff and the defendant with respect to the alleged contract and the rights of the parties thereunder. Yet, that is the entire subject matter of the instant proceeding. The requisites of "an actual controversy" necessary to present a justiciable question cognizable in a declaratory judgment proceeding are not present so far as the rights of the parties to the record are concerned.
As a corporation may dispose of its property as it chooses so long as it does not defraud creditors or violate the rights of stockholders, it was apparent when this appeal was first argued that only creditors and stockholders could possibly be concerned with the effects of what the plaintiff and the defendant had allegedly agreed upon inter se and were endeavoring to have this *Page 601 court stamp "Valid". As no creditor was complaining (the record indicated a highly solvent corporation), we set the appeal down for reargument and required the defendant company (a close corporation) to give specific notice to all stockholders of what was involved in the case and inviting them to become parties to the record in this court to voice any objection they might have. The company duly complied with our requirement and the result was a special meeting of stockholders (with knowledge of the impending reargument and its prescribed prerequisite) at which meeting the stockholders not only approved the alleged contract but also volunteered to give the management a "vote of confidence". Thus, there is manifestly no one with a penny's worth of material interest in the subject matter of this proceeding to contend with anyone else interested materially therein. Consequently, no "actual controversy" exists.
The only controversy there is or ever has been in this case is the dispute, past and prospective, between the defendant company and the Commissioner of Internal Revenue as to whether payments made by the defendant to the plaintiff under the alleged contract qualify as ordinary and necessary business expenses within the meaning of the Federal Revenue Acts. With that question, we, of course, are not concerned. But, it is counsel's expressed thought that a decision by this court upholding, as a matter of Pennsylvania property law, the alleged contract and the parties' rights thereunder (upon which they are in complete agreement) will be binding upon federal tribunals and that, thereby, the payments made by the defendant to the plaintiff under the alleged contract will become "ordinary and necessary [business] expenses". In my opinion that conception rests upon a misunderstanding of the pertinent law. Incidentally, the rule of Erie Railroad Co. v. Tompkins,304 U.S. 64, 78, which is so strongly stressed in the briefs, has no pertinency whatsoever to an adjudication *Page 602 of a taxpayer's liability under Federal Revenue Acts. Such questions are governed by federal law, uninhibited by state court rulings. Regardless, therefore, of what the status of the alleged contract in the instant case may be under Pennsylvania law, whether the payments made thereunder constitute allowable deductions in ascertaining the defendant company's federal tax liabilities is exclusively a federal question: seeCommissioner v. Francis E. Tower, 327 U.S. — (decided February 25, 1946). The defendant may be sure that no matter what is done in this case on the basis of state law it will neither hamper nor becloud the Commissioner of Internal Revenue or the Tax Court in correctly identifying the tree which grew the taxable fruits: cf. Lucas v. Earl, 281 U.S. 111, 115.
To paraphrase an apt expression of Mr. Justice DREW inKahn v. William Goldman Theatres, Inc., 341 Pa. 32, 34,17 A.2d 340, all that the parties to the instant proceeding sought was the confirmation of the opinion of their respective attorneys who were in amiable agreement on the matter. They hoped for a court opinion favorable to the plaintiff and for nothing else, substantially an advisory opinion although ". . . such opinions are not contemplated under this legislation": see Kahn case, supra, at p. 36. In Taylor v. Haverford Township, 299 Pa, 402,406, 149 A. 639, this court said that "We are determined that the Declaratory Judgments Act, an excellent piece of legislation when kept within proper bounds, shall not be used in cases to which it is not properly applicable." In my view, the benefits of declaratory judgment jurisdiction will best be safeguarded by a strict observance of the caution laid down in the Taylor case. As the instant case does not present "an actual controversy", I should reverse the judgment and remand with directions to dismiss the proceeding for want of jurisdiction.
1 Sec. 6 of the Declaratory Judgments Act of June 18, 1923, P. L. 840, as amended by the Act of April 25, 1935, P. L. 72, was still further amended by the Act of May 26, 1943, P. L. 645, in a manner not presently material. *Page 603