The following opinions were filed June 12, 1917:
ViNJE, J.In Van Dyke v. Milwaukee, 159 Wis. 460, 150 N. W. 509, it was held that dividends declared during 1911 by a corporation out of the surplus on hand prior to January 1, 1911, when the Income Tax Law went into effect, were taxable as income to the stockholders receiving them. That case governs this, and we perceive no good reason for overruling it. Our attention is specially called to the case of Lynch v. Turrish, 236 Fed. 653, as holding a contrary doctrine and as criticising the Van Dyke Case. There is nothing in the decision of the Lynch Case contrary to what is held in the Van Dyke Case if due regard is had to the difference in the acts under which they were decided. The federal income tax law took effect March 1, 1913. It pro*289vides that: “There shall be levied, assessed, collected and paid annually upon the entire net income arising or accruing from all sources in the preceding calendar year,” an income tax. 38 U. S. Stats, at Large, 166, ch. 16, sec. II, A, sub. 1. In the Lynch Qase income taxes for 1913 were in question. Under the act it became necessary to determine the net income of Turrish arising or accruing from all sources after March 1, 1913. Since the tax was to he levied only upon net income arising or accruing after March 1, 1913, it became necessary by the terms of the act to ascertain the net income that had accrued since that date and to exclude all income arising or accruing before March 1, 1913. Our act provides: “There shall be assessed, levied, collected and paid a tax upon incomes received during the year ending December 31, 1911, and upon incomes received annually thereafter.” Sec. 1087m — 1, Stats. 1911. And it further provides that: “The term income, as used in this act, shall include: . . . (d) All dividends . . . from stock.” Sub. 2 (d), sec. 1087m — 2. Hence, following the plain language of the law, if the dividends were derived from stock and if they were received during the year 1911 they were taxable. Unlike the federal act there is no need to ascertain when the income arose or accrued in order to determine whether it is taxable. The fact that it was received during 1911 makes it taxable irrespective of when it arose or accrued. That such provisions of the law do not render it void was held in the Income Tax Cases, 148 Wis. 456, 134 N. W. 673, 135 N. W. 164. It was there decided that the fact that the entire income for 1911 was taxed, though the law did hot take effect till July 1, 1911, did not render the Income Tax Law retroactive. Judge Sawboekt was justified in saying in the Lynch Case that the Van Dyke Case was not controlling or persuasive. But that was because of the difference in the requirements of the acts under which the income tax was to be assessed.
*290Much confusion of thought arises from regarding the income tax as a tax that is levied upon or attaches to property as such, irrespective of the person sought to be taxed. It is the recipient of the income that is taxed — not his property,— and the vital question in each case is, Has the person sought to be taxed received an income during the tax year ? If so, such income, unless specifically exempted, is subject to a tax though the property out of which it is paid may have been exempt from an income tax in the hands of the payor. It is the relation that exists between the person sought to be taxed and specific property claimed as income to him that determines whether there shall be a tax. If the person sought to be taxed is the recipient during the tax year of such specific property as income in its ordinary significance, then the person is taxed. But the tax is upon the right or ability to produce, create, receive, and enjoy, and not upon specific property. Hence, the amount of the tax is measured by the amount of the income irrespective of the amount of specific property or ability necessary to produce or create it. In the ordinary acceptation of the term this may be said to be a tax upon income as the statute denominates it. But the tax does not seek to reach property or an interest in property as such. It is a burden laid upon the recipient of an income. State ex rel. Manitowoc G. Co. v. Wis. Tax Comm. 161 Wis. 111, 152 N. W. 848; State ex rel. Bundy v. Nygaard, 163 Wis. 307, 158 N. W. 87.
It follows from this that though the surplus on hand January 1, 1911, was not assessable as income to the Northwestern Lumber Company, it was assessable as such to the stockholders thereof when distributed as dividends during 1911. Van Dyke v. Milwaukee, 159 Wis. 460, 150 N. W. 509; State ex rel. Pfister v. Widule, ante, p. 48, 163 N. W. 641; and State ex rel. Nunnemacher v. Widule, ante, p. 55, 163 N. W. 644.
Sub. (e), sec. 1087m — 3, Stats., provides that a corpora-*291tiqn may deduct from its gross income “dividends or income received within the year from stocks or interest in any co-partnership, corporation, joint stock company or association, the income of which shall have been assessed under the provisions of this act.” The Northwestern Lumber Company returned in its report to the Tax Commission the surplus on hand January 1, 1911, and the Commission held that such surplus in the hands of the Northwestern Lumber Company was not taxable. As we understand it, the circuit court held that since the Commission passed upon the taxability of this surplus in the hands of the Northwestern Lumber Company, it assessed it within the meaning of the statute above quoted. In this we think the court erred. This surplus was not assessed to the Northwestern Lumber Company within the meaning of the statute. It was property held exempt in its hands. To constitute an assessment within the meaning of the statute there must be the assessment or levy of a tax because of the existence of the fund as income. The surplus was not income to the Northwestern Lumber Company, but it was to its stockholders when distributed. Its exemption by the Commission in the hands of the Northwestern Lumber Company was not, therefore, an assessment within the meaning of the statute. The Income Tax Law contemplates that a tax shall be assessed once against all non-exempt income received after January 1, 1911. No tax was assessed against the Northwestern Lumber Company on account of this surplus, therefore it was properly assessed against its stockholders when distributed to them.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment affirming the action of the Tax Commission.