Diamond Financial Holdings, Inc. v. Limbach

Wright, J.,

dissenting. I agree with the majority that a corporation owes a franchise tax for the privilege of exercising its corporate franchise to transact business in an ensuing tax year. I also agree with the majority that a quiescent holding company need not apply a business-done fraction to one-half of its net worth if it did not actively participate for profit in a business activity in the preceding taxable year. However, I strongly disagree with the majority that Diamond Financial Holdings, Inc. did not transact any business in the 1983 taxable year, and, thus, conclude that it must pay a tax calculated on this business done for the 1984 tax year.

In Std. Carloading Corp. v. Glander (1949), 152 Ohio St. 404, 40 O.O. 403, 89 N.E.2d 575, syllabus, we held:

“An Ohio corporation whose sole activity is the holding of substantially all the ■ shares of another corporation, the collection of dividends thereof and their distribution to the former’s shareholders, is not doing business in this state within the meaning of the provisions of Section 5498, General Code [now R.C. 5733.05], even though the former corporation purchases additional shares of such other corporation and receives dividends from and executes proxies for the voting of shares, where the former corporation does not actively intervene or otherwise engage in the management of the subsidiary corporation either during the period involved or at any time prior thereto. (Cliffs Corp. v. Evatt, Tax Commr. [1941], 138 Ohio St. 336 [20 O.O. 442, 35 N.E.2d 144], distinguished.)”

In Nationwide Corp. v. Schneider (1966), 7 Ohio St.2d 59, 36 O.O.2d 48, 218 N.E.2d 611, paragraph two of the syllabus, we held:

“If there is no active participation by a holding company in the management of its subsidiary companies, the fact that the holding company engages in casual sales and acquisitions of stock and sales of its interests in other companies does not constitute ‘doing business,’ within the meaning of Section 5733.05, Revised Code, if such transactions, viewed in the light of such holding company’s history, appear to be isolated and are not consummated specifically for purposes of profit making.”

Thus, and conversely, if the holding company actively participates in the management of the subsidiaries in the taxable year, it is transacting business on which it must calculate the franchise tax for the ensuing tax year.

On cross-examination, counsel for the commissioner and the individual who was Diamond’s president during the disputed taxable year engaged in the following colloquy:

“Q. You had indicated that the business purpose of Diamond Financial Holdings was simply to serve as a holding company for all the financial services companies, I guess the corporate umbrella of Dana Corporation.
*235“A. For the financial service group, yeah.
“Q. But initially at least through the first part of 1983 and, in fact, it also was actively engaged, to some extent, in the management of those financial service companies, was it not?
“A. Actually, I don’t believe it was.
“Q. Well, you said a lot of them didn’t have any employees.
“A. The employees were employed in Diamond in name only. They spent their time doing business for the accounts of Potomac Leasing and Shannon Properties and some of the other subsidiaries.
“Q. But they were employees of Diamond Financial Holdings, Inc.?
“A. Yes. But there was nothing to do for Diamond, so they were doing it on behalf of the other companies.
“Q. But they were 100 percent owned subsidiaries of Diamond Financial Holdings, Inc.?
“A. That’s true.
“Q. And employees of Diamond Financial Holdings, Inc., were the only employees in many regards who exercised any management over these subsidiaries?
“A. That’s true.
“Q. So any business decisions had to have necessarily been made by Diamond Financial Holding Company employees?
“A. Prior to March 31st of 1983.
“Q. And those employees would obviously be controlled by the officers and/or directors of Diamond Financial Holdings, Inc.?
“A. Or other employees.
“Q. Or other employees of—
“A. Diamond Financial Holdings—
“Q. Diamond Financial?
“A. —Inc.”

Based on this testimony, and despite Diamond’s protestations that these employees were its employees in name only, I can only conclude that Diamond actively intervened and engaged in the management of the subsidiary corporations during a portion of the taxable year. Diamond’s employees managed the subsidiaries and made the business decisions of the subsidiaries until March 31, 1983, in the taxable year on which the tax base for tax year 1984 is calculated. I might agree with the majority if tax year 1985 were involved and Diamond *236continued to operate in taxable year 1984 as it operated after March 31, 1983. However, I would reverse the BTA’s decision as to the tax year before us, 1984.

Thus, I must respectfully dissent.