The appellant contends that the money paid to the plaintiffs as stockholders of the Sallie F. Moon Company and designated as dividends is taxable income of the relators although the source of such dividends is a surplus accumulated prior to 1911 by the Northwestern Lumber Company and paid out by it to the Sallie F. Moon Company in 1917 as a result of severally declared dividends by the Northwestern Lumber Company in 1916.
The income tax law provides for the levying of a tax upon annual incomes. Sub. 2, sec. 1087m — 2, Stats., in defining the term “income,” so far as material here now reads as follows:
“(b) All dividends derived from stocks and all interest derived from money loaned or invested in notes, mortgages, bonds or other evidence of debt of any kind whatsoever, provided, that the term ‘dividends’ as used in this section shall he held to mean any distribution made by a corporation, joint-stock company or association, out of its *418earnings or profits accrued since January i, ipil, and paid to its shareholders whether in cash or in stock of the corporation, joint company or association.”
The italicised portion of said sub. 2 (b) was added to the statute as it then stood by ch. 247, Laws 1917, approved May 21st.
The word “dividend” as used in the subsection prior to the amendment had been construed in Van Dyke v. Milwaukee, 159 Wis. 460, 159 N. W. 509, to mean that “ordinary dividends declared by a going corporation, including mining corporations, will be conclusively presumed as against stockholders to be from earnings or profits for purposes of income taxation.” Page 464.
In State ex rel. Bundy v. Nygaard, 163 Wis. 307, 158 N. W. 87, the word “income” as used in the statute before amendment was defined to be “profit or gain derived from capital or labor, or from both combined. ... It must be gain or profit.”
Subsequently the cases of State ex rel. Pfister v. Widule, 166 Wis. 48, 163 N. W. 641 (decided in June, 1917), and State ex rel. Sallie F. Moon Co. (a Wisconsin corporation) v. Wis. Tax Comm. 166 Wis. 287, 288, 163 N. W. 639, 165 N. W. 470 (decided in December, 1917, but argued in May of that year), repeated what was said in the Van Dyke Case, supra, as to the definition given to the word “dividend.”
We construe the legislative definition now applicable to the term “dividend” as it stands in the amended sec. 1087m — 2 as intended to now permit the opening of the door of inquiry as to the source from which came the money paid by a corporation to its stockholders, although designated by it as dividends, the door which was in effect declared in the prior cases completely closed. The result now is that a stockholder in any corporation to whom, as stockholder, there has been paid a sum of money under the designation of dividends has the right to show that such *419payment or dividend was made out of capital or surplus and therefore not taxable, instead of out of earnings or profits accrued since January 1, 1911, which would be taxable. That the fund in question passes through the treasury of the Sallie F. Moon Company after leaving that of the Northwestern Lumber Company and before reaching the hands of the relators does not change the nature of the transaction. At no time on its passage from the first company to the relators does it meet the present definition of the dividend which is to be considered as part of the taxable income of an individual.
It follows that when, as here, the fund in question does not meet the definition of taxable income, it is unnecessary to consider the language of the same law providing for deductions and exemptions, for they are properly considered only in reference to that which would otherwise be taxable income.
Giving the words “earnings” and “profits” their plain, every-day meaning, the payments in question here are not profits or earnings accrued since January 1, 1911, to-the Sallie F. Moon Company and therefore do not meet the present statutory definition of taxable income. The trial court was therefore right in his conclusion.
By the Court. — Judgment affirmed.
Winslow, C. J., and Siebecker, J., dissent.