ART. 421. Fiduciary returns.-Every fiduciary, or at least one of joint fiduciaries, must make a return of income (a) for the individual whose income is in his charge, if the gross income of such individual is $5,000 or over, or if the net income of such individual is $1,000 or over if single, or if such individual is married and was living with husband or wife for the entire taxable year and the aggregate gross income of both husband and wife is $5,000 or over, or the aggregate net income of both husband and wife is $2,500 or over, or if such individual is married and was living with husband or wife for a period less than the entire taxable year and the aggregate gross income of both husband and wife is $5,000 or over, or the aggregate net income of both husband and wife is equal to, or in excess of, the credits allowed them by section 216 (f) (2), or (b) for the estate or trust for which he acts if the net income of such estate or trust is $1,000 or over, or if the gross income of the estate or trust is $5,000 or over, regardless of the amount of the net income, or if any beneficiary of such estate or trust is a nonresident alien. The return in case (a) shall be on Form 1040. In case (b) a return is required on Form 1040 with respect to any taxable net income of the estate or trust computed in accordance with section 219 (b) of the statute and a return on Form 1041 with respect to any income deducted under paragraph (2) or (3) of subdivision (b) of section 219. If a portion of the income of the estate or trust is retained by the fiduciary and the remainder is distributable or distributed to beneficiaries, both Forms 1040 and 1041 will be required. See article 425 for returns in cases where any beneficiary is a nonresident alien. If the net income of a decedent from the beginning of the taxable year to the date of his death was $1,000 or more if unmarried, or $2,500 or more if married, or if his gross income for the same period was $5,000 or over, the executor or administrator shall make a return for such decedent. See article 305. See article 342. ART. 422. Return by guardian or committee.-A fiduciary acting as the guardian of a minor having a net income of $1,000 or more, or $2,500 or more, according to the marital status of such person, or having a gross income of $5,000 or over, must make a return for such minor on Form 1040 or 1040A and pay the tax unless such minor himself makes a return or causes it to be made. A fiduciary acting as a guardian or the committee of an insane person having an income of $1,000 or more, or $2,500 or more, according to the marital status of such person or having a gross income of $5,000 or over, must make a return for such incompetent on Form 1040 or 1040A and pay the tax. For the purpose of determining the liability of a fiduciary to render a return under the provisions of the preceding paragraph in cases where the minor or the incompetent is married and was living with husband or wife during the entire taxable year, the aggregate gross income or the aggregate net income of both husband and wife must be taken into consideration. See article 401. If the individual for whom the fiduciary is acting as guardian marries during the taxable year, a return must be made if the aggregate gross income of both husband and wife is $5,000 or over, or if the aggregate net income of both husband and wife is equal to or in excess of the credits allowed by section 216 (ƒ) (2). See article 305. C. R. NASH, Acting Commissioner of Internal Revenue. Approved January 3, 1925: A. W. MELLON, Secretary of the Treasury. (T. D. 3661) Income taxes-Revenue act of 1924-Decision of court Section 257 of the revenue act of 1924 is constitutional and under its provisions income-tax returns constitute public records to the extent of the name, address, and amount of income tax paid by a taxpayer. 2. SAME INJUNCTION. Injunction will not lie to restrain the Commissioner of Internal Revenue from publishing pursuant to section 257 of the revenue act of 1924 the name, address, and amount of income tax paid by a taxpayer for the year 1923. TREASURY DEPARTMENT, OFFICE OF COMMISSIONER OF INTERNAL REVENUE, To the Collectors of Internal Revenue and Others Concerned: C. R. NASH, Acting Commissioner of Internal Revenue. Approved January 5, 1925: Secretary of the Treasury. SUPREME COURT OF THE DISTRICT OF COLUMBIA. EQUITY No. 43277 Gorham Hubbard, plaintiff, v. David H. Blair, Commissioner of Internal Revenue, defendant (December 3, 1924) MEMORANDUM HOEHLING, Justice: Plaintiff, a resident of Boston, Mass., alleges that on March 10, 1924, he filed in that collection district a Federal income-tax return for the calendar year 1923, and that he paid the several installments of tax thereunder from time to time as the same became due; that defendant is threatening to publish the figures of the tax so paid by making the same available to public inspection in the office of the collector of internal revenue at Boston and elsewhere; this under the provisions of section 257, paragraphs (a) and (b) of the act of Congress approved June 2, 1924; and plaintiff states that such publication, if made, will be in derogation of his rights, as well as detrimental and offensive to him; and, further, that the provisions of the act of 1924, supra, are unconstitutional and void in that Congress has no right to invade the rights of privacy of citizens; and that said provisions violate the fourth amendment; and, accordingly, he prays that defendant be enjoined from publishing the figures of the tax paid by him by making the same available to public inspection. Defendant moves to dismiss the bill upon the grounds (a) want of equity; (b) that no property right of plaintiff is involved; and (c) that said section 257, paragraph (b), is within the constitutional power of Congress. The case has been argued upon the motion to dismiss, and submitted for determination as upon final hearing. The question thus presented is of exceeding importance both to the Government and to the vast body of taxpayers of the United States. In order to view the legislation so challenged by plaintiff in its true relation to income tax or revenue legislation enacted by Congress, it may be helpful to consider briefly and in chronological order the development of the subject. The first income-tax law was that of August 5, 1861 (12 Stat. 294), which imposed a tax of 20 millions of dollars, apportioned, and to be levied wholly on real estate; and it also levied taxes on incomes whether derived from property or profession, trade or vocation. Apparently, the only reference therein as to publicity is found in section 49 thereof (being the section which imposed the income tax), in these words: "and the said taxes, when so assessed and made public, shall become a lien on the property or other sources of said income for the amount of the same," etc. (Italics supplied.) Next followed the act of July 1, 1862 (id. 473), which repealed the above section 49 (and certain other sections) and enacted other sections in lieu thereof; but, in the new or substitute sections the above words, "and made public," do not appear; nor was the same or similar designation again used in the succeeding legislation of that period, so far as the court has ascertained from reading the acts. (See acts of March 3, 1863, id. 718; June 30, 1864, 13 id. 281; March 3, 1865, id. 479; March 10, 1866, 14 id. 4; July 13, 1866, id. 137; March 2, 1867, id. 477; and, finally, July 14, 1870, 16 id. 256.) The above legislation grew out of the Civil War and the system of taxation therein provided ceased to be operative with the end of the year 1871. As a matter of history, the court understands that income-tax lists were printed and published during at least parts of the period while said legislation was operative; and, further, that the publication thereof, then as now, provoked controversy both for and against. Whether the matter proceeded further than public discussion, the court is not advised; nor has it found any decided case concerning the matter, if any such case there be. In passing, it may be noted that section 38 of the above act of June 30, 1864, contains the following provision: Provided, That if any such officer shall divulge to any party, or make known in any manner other than is provided in this act, the operation, style of work, or apparatus of any manufacturer or producer visited by him in the discharge of his official duties, he shall be subject to the penalties prescribed in section thirtyfive (thirty-six) of this act. The mistake of writing the word "thirty-five" instead of thirty-six was coarected by amendment in the subsequent act of March 3, 1865, supra. The above provision later became original section 3167, R. S. U. S. (to be further noticed below); although, as will be seen from its language, it had reference (before its amendment in more recent years) to "the operations, style of work, or apparatus of any manufacturer or producer," visited by an internalrevenue officer in the discharge of his official duties; and then had no relation whatever to an income-tax return. Thus the matter stood during the years and without change or amendment until the enactment of the Federal income-tax law (later held unconstitutional, Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601) of August 15, 1894 (28 Stat. 509, 557), which latter reenacted the provisions of said section 3167, R. S. U. S.; but it added thereto an express prohibition against disclosure of— the amount or source of income, profits, losses, expenditures, or any particulars thereof, set forth or disclosed in any income return, by any person or corpora tion, or to permit any income return or copy thereof or any book containing any abstract or particulars thereof, to be seen or examined by any person except as provided by law, etc. And the act made it further unlawful for any person to print or publish, in any manner whatever not provided by law, any income tax return or any part thereof or the amount or source of income, profits, losses, or expenditures appearing in any income tax return, etc. The violation of any of the above provisions was made to be a misdemeanor, punishable in like manner as provided in said original section 3167, R. S. U. S. Next in order of time and importance in tracing the history of revenue legislation, in so far as it relates to the matter of publicity, is the corporation tax law of August 5, 1909 (36 Stat. 11), the sixth subdivision of section 38 of which act provided that, when the assessment shall have been made as therein provided the returns, together with any corrections thereof which may have been made by the commissioner, shall be filed in the office of the Commissioner of Internal Revenue, and shall constitute public records, and be open to inspection as such. (Italics supplied.) An amendment to that provision was made by the act of June 17, 1910 (id. 494), as follows: Provided, That any and all such returns shall be open to inspection only upon the order of the President, under rules and regulations to be prescribed by the Secretary of the Treasury and approved by the President. NOTE. The above provisions of the corporation tax law will be further considered later on herein. Later on came the Federal income tax law of October 3, 1913 (38 Stat. 114, 177), wherein said section 3167 is reenacted in the same language in which it had been set forth in the act of August 15, 1894, supra, and, therefore, it need not here be repeated. Furthermore the same section 3167 as so amended was carried forward and in the same language in the several succeeding revenue acts of September 6, 1916 (39 id. 756, 773); February 24, 1919 (40 id. 1057); November 3, 1921 (42 id. 268); and, finally, in the present act of June 2, 1924. From the foregoing summary of legislation concerning said section 3167 it will be observed that disclosure, examination, inspection, printing, or the publishing of any income return, or any part thereof, "except as provided by law," is prohibited, and made to be a misdemeanor and punishable as such. The question then arises whether, and, if so, to what extent, disclosure of such income return has been "provided by law." As to this it may be remarked that, save only as the first income tax law of August 5, 1861, supra, provided that the tax, when assessed "and made public," shall become a lien on the property or other source of the income; as well as the provision as to publicity contained in the corporation tax law and its amendment above referred to; the right of property or right to privacy (whichever it may be) of the taxpayer in respect of the income-tax return filed by him, if legal right it be, was respected in the income-tax legislation enacted by Congress, until the act of February 24, 1919, supra, and which act thus provided: SEC. 257. That returns upon which the tax has been determined by the Commissioner shall constitute public records; but they shall be open to inspection only upon order of the President and under rules and regulations prescribed by the Secretary and approved by the President: Provided, That the proper officers of any State imposing an income tax may, upon the request of the governor thereof, have access to the returns of any corporation, or to an abstract thereof showing the name and income of the corporation, at such times and in such manner as the Secretary may prescribe: Provided further, That all bona fide stockholders of record owning 1 per centum or more of the outstanding stock of any corporation shall, upon making request of the Commissioner, be allowed to examine the annual income returns of such corporation and of its subsidiaries. Any stockholder who pursuant to the provisions of this section is allowed to examine the return of any corporation, and who makes known in any manner whatever not provided by law the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any such return, shall be guilty of a misdemeanor and be punished by a fine not exceeding $1,000, or by imprisonment not exceeding one year, or both. The Commissioner shall as soon as practicable in each year cause to be prepared and made available to public inspection in such manner as he may determine, in the office of the collector in each internal-revenue district and in such other places as he may determine, lists containing the names and the postoffice addresses of all individuals making income-tax returns in such district. Next came the revenue act of November 23, 1921, supra, which reenacted said section 257 without change. Finally, the present revenue act of June 2, 1924, supra, was enacted, which materially amended, as well as enlarged the scope of, the section named, in that, the above two paragraphs were made to be (a) and (b), respectively; and, in (a) there was inserted an additional provision authorizing certain committees of Congress to obtain and use information concerning income-tax returns; and, in (b), by adding a provision to permit public inspection as to the amount of the income tax paid so that that subparagraph of the section as so amended now reads: (b) The Commissioner shall as soon as practicable in each year cause to be prepared and made available to public inspection in such manner as he may determine, in the office of the collector in each internal-revenue district and in such other places as he may determine, lists containing the name and the postoffice address of each person making an income-tax return in such district, together with the amount of the income tax paid by such person. (Italics supplied.) It will thus be observed that the public inspection theretofore authorized, of name and post-office address of the taxpayer merely (acts of 1918 and 1921), has been enlarged and extended (by the present act of 1924) to include, as well, the amount of the income tax paid by each such person. And it is that provision which has given rise to this controversy and suit. If the question thus presented were an open one, in the sense that it had not theretofore been the subject of judicial decision, and even if the court in that event entertained some doubt as to the validity, or otherwise, of such legislation, nevertheless, due respect for a coordinate branch of the Government would require that it should only be decided that Congress has transcended its powers when it is so plain that the duty can not be avoided.-Sinking Fund Cases (99 U. S. 700, 718); Trade Mark Cases (100 id. 82, 96); Naganab v. Hitchcock (25 App. D. C. 200). But is the question really an open one? The answer, in the opinion of the court, is found in the decision by the Supreme Court of the United States in the case of Flint v. Stone-Tracy Co. (220 U. S. 107, 176-7) which case involved the constitutionality of the corporation tax law of 1909 as amended by the act of 1910, supra, hereinabove referred to. In that case the validity of the legislation mentioned was attacked on various grounds and, among others, upon the ground that the provision for inspection of the returns filed by corporations was violative of the fourth amendment. In rejecting that objection the opinion of the court thus stated: The contention is that the above section as originally framed and as now amended could have no legitimate connection with the collection of the tax, and in substance amounts to no more than an unlawful attempt to exhibit the private affairs of corporations to public or private inspection, without any substantial connection with or legitimate purpose to be subserved in the collection of the |