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Port Construction Co. v. Government of Virgin Islands

decided: May 2, 1966.

PORT CONSTRUCTION COMPANY, APPELLANT,
v.
GOVERNMENT OF THE VIRGIN ISLANDS



Kalodner, Chief Judge, and Maris and Hastie, Circuit Judges.

Author: Maris

MARIS, Circuit Judge.

The plaintiff, Port Construction Company, brought this suit in the District Court of the Virgin Islands against the Government of the Territory for declaratory and injunctive relief. The complaint sets out two separate claims for relief. The first is for a determination that the Virgin Islands gross receipts tax law, 33 V.I.C. § 43, violates the commerce clause of the Constitution and may, therefore, not be validly applied to the plaintiff. The plaintiff's second claim for relief is for a determination that under a proper construction of the Virgin Islands industrial incentive law in force on February 2, 1960, 33 V.I.C. (1958 Supp.) § 4052, it was entitled to have its application for exemption from taxation made under that law granted. The district court, after hearing, dismissed the complaint on December 31, 1964. 237 F. Supp. 486, 5 V.I. 105. Following the denial of its motion for a new trial the plaintiff took the appeal which is now before us.

We consider first the plaintiff's attack upon the constitutionality of the gross receipts tax law. That attack is three-pronged. The plaintiff first asserts that the law is invalid on its face because it imposes the tax upon all gross receipts from business done both within and without the Territory, without making any provision for apportioning the tax to receipts from intraterritorial business only. The plaintiff does not assert, however, that receipts from any of its business outside the Virgin Islands are being subjected to the tax. The facts are that it is a Florida corporation engaged in the general construction business there and elsewhere. On September 4, 1959 it entered into a contract with the Virgin Islands Housing and Urban Renewal Authority for the construction of the Oswald E. Harris Housing Project in St. Thomas. After qualifying as a foreign corporation under the local law to do business in the Territory the plaintiff proceeded with the work called for by its contract. The plaintiff having failed to file reports and pay the tax upon its gross receipts imposed by the statute in question, the Territorial Commissioner of Finance made an assessment of the taxes estimated to be due based upon the amounts received by the plaintiff under its contract with the Authority. It will thus be seen that the plaintiff has not itself been injured by what it asserts is the unconstitutional breadth of the statute.

It may well be, therefore, as the Government argues, that the plaintiff lacks standing to attack the constitutionality of the statute. We are clear, however, that in any event there is no merit in the plaintiff's contention that the statute is unconstitutional on its face. So far as here pertinent 33 V.I.C. § 43, in 1961 when this complaint was filed, provided:

"(a) All persons engaged in business, including those trading in articles, goods, merchandise or commodities shall report their gross receipts and pay a tax of one (1%) per cent on the gross receipts of such business, the proceeds of which shall be covered into the General Fund of the Treasury of the Virgin Islands. * * *

"(b) The term 'gross receipts' as used in this title shall mean all receipts, cash or accrued, of the taxpayer for services or derived from trade, business, commerce or sales, and the value accruing from the sale of tangible personal property or services, or both, including rentals, fees and other involvements, however designated, without any deduction on account of the cost of the property sold, the cost of materials used, labor cost, royalties, taxes, interest or discount paid, or any other expenses whatsoever."

This statutory language must be considered in the light of 33 V.I.C. § 41 which provides that "* * * there shall be levied upon, collected from and paid by persons, partnerships, firms, corporations or other associations engaged in trades and other business in the Virgin Islands, the taxes hereinafter provided; such taxes to be computed in proportion to the extent of the trade carried on or of the business done, as set forth in the remaining sections of this chapter."

It is an established canon of statutory construction that all the provisions of a statute upon a subject are to be harmonized and read together so as to effectuate the purposes of the statute. And this is to be done in the light of the presumed desire and intent of the Legislature to enact a statute which is constitutional and otherwise valid. Accordingly if a statute is attacked as invalid and there is a possible construction of it which will render it valid, the courts will adopt that construction and uphold the statute. Driscoll v. Edison Light & P. Co., 1939, 307 U.S. 104, 114-115, 59 S. Ct. 715, 83 L. Ed. 1134; Flemming v. Nestor, 1960, 363 U.S. 603, 617, 80 S. Ct. 1367, 4 L. Ed. 2d 1435; 16 Am.Jur.2d Constitutional Law §§ 144, 146, 147; 50 Am.Jur. Statutes, §§ 357, 358. In Singer Sewing Mach. Co. v. Brickell, 1914, 233 U.S. 304, 313, 34 S. Ct. 493, 58 L. Ed. 974, the Supreme Court said:

"* * * The statute under consideration does not in direct terms or by necessary inference manifest an intent to regulate or burden interstate commerce. Full and fair effect can be given to its provisions, and an unconstitutional meaning can be avoided, by indulging the natural presumption that the legislature was intending to tax only that which it constitutionally might tax. So construed, it does not apply to interstate commerce at all. The statute provides for a license or occupation tax. Normally, as the averments of the bill sufficiently show, the occupation may be and is conducted wholly intrastate, and free from any element of interstate commerce. The fact that, as carried on in Russell county, a like occupation is conducted with interstate commerce as an essential ingredient, is wholly fortuitous."

The statute now before us does not either by direct language or necessary inference manifest an intent to tax the gross receipts from extra-territorial business. On the contrary § 41 expressly limits the tax imposed by § 43 to those "engaged in trades and other business in the Virgin Islands." It is, therefore, only the gross receipts from business in the Virgin Islands upon which § 43 imposes the tax. Subsection (b) of § 43, which defines "gross receipts" is not inconsistent with this reading of the statute. For its thrust is obviously directed to the manner of the computation of the gross receipts which are to be taxable, i.e., that they shall be truly gross and not subject to the deduction of business expenses, and not at all to the geographical source of the receipts.

This construction of the statute is also supported by the interpretation which has consistently been placed upon it by the Territorial Commissioner of Finance, who has applied it only to gross receipts derived from business done in the Virgin Islands. Thus, as we have seen, the Commissioner in the present case based his estimated assessment upon the plaintiff's actual receipts from its Virgin Islands work. Such an interpretation by the agency charged with the administration of the statute is entitled to great weight. Driscoll v. Edison Light & P. Co., 1939, 307 U.S. 104, 115, 59 S. Ct. 715, 83 L. Ed. 1134.

The plaintiff next argues that the statute prior to October 27, 1961 did not apply to building contractors engaged in the construction of public projects and in support of this argument it points to the Act of October 27, 1961, No. 781, which added to 33 V.I.C. § 43 the following additional subsection:

"(c) The provisions of this section shall apply to contractors with the Government of the Virgin Islands for public ...


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