Pomper v. United States, 196 F.2d 211 (2d Cir. 1952)

Labels aside, however, the federal unemployment tax differs from state franchise taxes in a more important way. As the district judge here pointed out, "the amount of the tax for any specific period is computable by simple arithmetic." [100 F. Supp. 125.] The employer's tax at any given time in the taxable period can be accurately computed through multiplying by three one-hundredths the aggregate wages paid to employees up to that time. The mere fact that the tax is not due until the year's end does not detract from the fact that it is incurred in a readily ascertainable amount as the wages are paid out. Indeed, if the employer sells out his business to a new employer at any point in the year, he will still be responsible for the tax of 3% on all wages paid out by him before the sale, while his successor employer will be responsible for a 3% tax on the remaining payroll (provided, in the case of both the old and the new employer the period of their ownership covers twenty weeks — the minimum work-week total for any tax on an employer). S.S.T. 199, 1937 Cum.Bull.-2 405.¹  Such a flexibility in computing and dividing the annual payroll tax when the business changes hands (not to be found in the area of state franchise taxes. See e. g., People of State of New York v. Jersawit, 263 U.S. 493, 44 S. Ct. 167, 68 L. Ed. 405.) is not compatible with the United States' contention that, because the tax is imposed for a "taxable year" or "calendar year," it is an inherently un-split-up-able unit.

Since, then, the annual tax can be easily apportioned between pre-bankruptcy and post-bankruptcy wages, and since we can find no policy of the tax statute disturbed by such apportionment, we think the unemployment tax must be treated the same as other regular business expenses of the debtor continuing throughout and apportionable between the pre-bankruptcy and post-bankruptcy periods of the year. See In re Wil-Low Cafeteria, Inc., 2 Cir., 111 F.2d 83. The Referee was, we think, justified in denying priority to unemployment taxes levied on wages paid out before the Chapter XI petition was filed.² 

Affirmed.

CLARK, Circuit Judge (dissenting).

At first blush it may seem unnatural to view as a single unit assessment a tax for an unemployment fund assessed against employers on the basis of wages paid during the course of a year. I fear that the various tribunals which have decided against the government in this proceeding have taken that initial reaction as a guiding principle of interpretation to set aside a manifest legislative intent. For I can find nothing other than this feeling that the governmental contention cannot, i. e., ought not to, be so to support the result. There are no authorities that way;¹  and the statutory language seems strongly contra. The several sections, I.R.C. §§ 1600-1611, are too long to quote in full. They seem clear in the provision for an "excise tax" on the employer "for each calendar year" of 3 per centum of the total wages "paid by him during the calendar year," § 1600, computed according to a return filed by the employer "for such taxable year" not later than January 31 "next following the close of the taxable year," § 1604, and payable in a single amount or, if the taxpayer so elects, in four equal installments, with the whole due if any installment remains unpaid on the last day for its payment, § 1605. And all the other provisions carry out this idea of a tax for the year computed and paid as a whole after the year has closed. Repeatedly stressed are either the "calendar year" or the "taxable year."

In fact, some provisions seem or tend to be unworkable on the theory of a tax accruing from day to day. Thus the credits allowed under § 1601 for payments to a state unemployment fund are pointedly "for contributions paid on or before the last day upon which the taxpayer is required under section 1604 to file a return for such year," with a special provision covering later payments in part; the intent to pick up all such amounts in the single return at the year's end, depending on the the fact that a federal tax has then become due, seems obvious. Likewise the provision for computing the maximum wage of $3,000 beyond which no tax is due, § 1607 (b) (1), concerns itself expressly with the amount paid an individual during a "calendar year," and does not contemplate the possibility of prorated payments over a portion thereof. Other like provisions are cited; and there is no suggestion anywhere of the unreal idea — viewing any business — that the employer becomes a new and different person, destroying the unitary character of this assessment, by the mere chance of filing a petition for arrangement. Incidentally the departmental ruling has been to the contrary, S.S.T. 151, 1937 — 1 Cum. Bull. 464; S.S.T. 199, 1937 — 2 Cum.Bull. 405, a point which should be of weight, particularly in the light of successive reenactments of the taxing statute.

We are not at liberty to rewrite a statute because we do not like its terms. Christensen v. United States, 2 Cir., 194 F.2d 978. But on close thought the policy does not seem unfair. Here is a business still going and required to pay as a primary charge along with wages a tax thereon for the unemployed. To include in this limited tax with a specified ceiling per employee the total for the year as required to be assessed and paid by the statute, without refinements of confusing changes, does not seem unduly harsh. I would reverse.