The opinion
SPIESS, Chief Judge (dissenting).
It is axiomatic that a state has no power to impose a tax upon a national bank except as is permitted by Congressional action. First Agricultural National Bank of Berkshire County v. State Tax Commission, 392 U.S. 339 , 88 S.Ct. 2173 , 20 L.Ed.2d 1138 (1968); Union Bank & Trust Company v. Phelps, 288 U.S. 181 , 53 S.Ct. 321 , 77 L.Ed. 687 , 83 A.L.R. 1438 (1933); Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239 , 52 S.Ct. 133 , 76 L.Ed. 265 (1931); First National Bank of Hartford, Wis. v. City of Hartford, 273 U.S. 548 , 47 S.Ct. 462 , 71 L.Ed. 767 , 59 A.L.R. 1 (1927); Des Moines National Bank v. Fairweather, 263 U.S. 103 , 44 S.Ct. 23 , 68 L.Ed. 191 (1923); First National Bank of Gulfport, Miss. v. Adams, 258 U.S. 362 , 42 S.Ct. 323 , 66 L.Ed. 661 (1922); Owensboro National Bank v. City of Owensboro, 173 U.S. 664 , 19 S.Ct. 537 , 43 L.Ed. 850 (1899).
The Act of Congress, 12 U.S.C.A. § 548 , furnishes the exclusive basis for the imposition of a tax by a state upon a national bank. First Agricultural National Bank of Berkshire County v. State Tax Commission, supra; Iowa-Des Moines Nat. Bank v. Bennett, supra.
The majority affirm the tax levy involved upon the grounds (1) that the activity engaged in by the bank and forming the basis for the tax levy was outside its corporate powers, and (2) the contract under which the bank rendered services to which the tax related permits the bank to charge those it serves the amount of the tax imposed.
I doubt that the activity is actually outside the scope of the bank’s corporate powers but, if so, such action on the bank’s part furnishes no ground, in my opinion, for the state to usurp a taxing power which it does not possess.
The identity of the taxpayer is not changed because it engages in an ultra vires activity. The tax is still directed against the bank and payment is still required to be made from its property and assets.
The majority seem to take the view that the Congressional Act is a limitation upon the power of the state to lay taxes upon a national bank and from this premise they reason that the Congress did not intend to limit the right of the state to tax services not incident to the bank’s corporate powers. The difficulty with this reasoning, in my opinion, is simply that the Congressional Act is a grant of authority or permission to impose a tax and is not a limitation upon the right of the state to tax. In other words, the state has no right to tax a national bank except in the manner authorized by the Act. The Act clearly does not grant permission to the states to tax a national bank with respect to an activity which is ultra vires. To justify such levy the state should point to permissive language in Congressional legislation, which, of course, it is unable to do.
The contract under which the bank renders services to others provides, in substance, that those to whom the service is rendered will repay to the bank any tax on account of such service which it is lawfully required to pay. The liability accrues only if the tax is lawfully levied. The contract, therefore, does not permit avoidance of the issue of lawfulness of the levy as against the bank, nor is it justification for the state to impose the tax unless it is lawful so to do.
I respectfully dissent.