BERRY et ux v. STATE TAX COMMISSION, 241 Or. 580

GOODWIN, J. The plaintiffs appeal from a decree of the Oregon Tax Court which denied them a refund of part of the state income tax which they paid for 1959. The plaintiffs are husband and wife, and at all material times were residents of California. The opinion of the Tax Court is reported in 1 OTC Adv Sh 483 (1964). The State Tax Commission denied the taxpayers certain personal deductions. The claimed deductions were for medical expenses, interest on loans in California, and other similar personal items.

During the year covered by their 1959 tax return, the taxpayers received income from a trust of real property in Oregon. No part of the deductions represented expenditures connected with the production of the Oregon income or with Oregon property. The agreed statement of facts indicated that the income was not dependent upon the health or earning power of the taxpayers. We leave open, therefore, the question whether or not in a proper case medical expenses might be “connected with” income.

The relevant parts of QBS 316.360 provide: “(1) 'Subject to subsection (2) of this section, in the case of a nonresident taxpayer the deductions allowed by OBS 316.305 to 316.350 shall be allowed only if and to the extent that they are connected with.: “'(

a) Income which arises from sources within the State of Oregon and which is taxed to a nonresident taxpayer under this chapter; or “(

b) Property having a situs for taxation within the State of Oregon.” The taxpayers contend that the foregoing statute denies them the equal protection of the laws and the equal privileges and immunities guaranteed by the Fourteenth Amendment and by

Article IY, § 2, of the Constitution of the United States. The statute is said to be unconstitutional because nonresidents are not permitted to deduct certain amounts from their personal income taxes which residents of Oregon are permitted to deduct from their personal income taxes. In upholding the right of the State of Oklahoma to tax a nonresident upon income earned within Oklahoma while denying him the right to deduct losses which Oklahoma residents could have deducted, the United States Supreme Court said in a dictum that-the state regulations did not violate any federal constitutional right. Shaffer v.

Carter, 252 US 37, 40 S Ct 221, 64 L Ed 445 (1920). The Shaffer dictum was approved and reiterated in Travis v. Yale & Towne Mfg. Co., 252 US 60, 40 S Ct 228, 64 L Ed 460 (1920). The Shaffer and Travis dicta do not appear to have been questioned or weakened by any holding of the Supreme Court, and are treated in some of the law reviews as law. See Solomon, Nonresident Personal Income Tax: A Comparative Study in Eight States, 29 Fordham L Rev 105, 140 (1960), and Culp, Selected Problems in Multistate Taxation, 44 Iowa L Rev 280 (1959).

It has been held that the privileges-and-immunities clause bars discrimination based solely upon residence, but does not preclude disparity of treatment where there are independent reasons for it. Thus, the inquiry in each case is whether the degree of discrimination bears a close relation to the reasons, apart from residence, which a state legislature may have had for enacting an apparently discriminatory law. Toomer v. Witsell, 334 US 385, 396, 68 S Ct 1156, 92 L Ed 1460 (1947). The statute in question does not discriminate against nonresidents because they are nonresidents.

Bather it is part of a statutory scheme that recognizes the tax problems created by interstate investors and commuters. (See, for similar legislation, Calif. Rev. & Tax. Code § 17301.) Like the legislatures of other states, the Oregon Legislative Assembly may have been of the opinion that personal deductions are so closely related to the state of residence that they should be allowed only by the state of residence and not by every other state in which some part of a taxpayer’s income might be found and taxed. The wisdom of such a legislative policy is a matter for legislative, rather than judicial, decision.

For a discussion of such legislation, see Hellerstein, State and Local Taxation 54S (2d ed 1961). The Tax Court correctly looked to the decisions of the United States Supreme Court for guidance in the application of the United States Constitution to the power of a state to tax income earned within that state. In holding that the Oregon staute does not offend the federal Constitution, the Tax Court followed the only authority available, i.e., Shaffer v. Carter and Travis v. Yale & Towne Mfg. Co. In Matter of Goodwin v.

State Tax Comm., 286 App Div 694, 146 NYS2d 172 (1955), affirmed without opinion, 1 NY2d 680, 133 NE2d 711, dismissed for want of a substantial federal question, 352 US 805, 77 S Ct 47, 1 L Ed2d 38 (1956), the New York court decided a similar question in the same way. We agree that the authorities do not support the taxpayers’ contention on the federal constitutional questions. The Tax Court also held that the statute does not offend the Oregon Constitution.

Article I, § 20, of that constitution contains the “equal privileges and immunities” clause, which does not purport to deal with the rights of nonresidents. See Alsos v. Kendall et al., 111 Or 359, 227 P 286 (1924).

Article I, § 32, requires all taxation to be uniform within a given class. Equality within a class is all that is necessary. McPherson v. Fisher, 143 Or 615, 23 P2d 913 (1933). Under the special circumstances of multistate taxation, residence is a proper classification for allowing or disallowing personal deductions in the administration of a state income tax. Matter of Goodwin v. State Tax Comm., supra.

Finally, the Tax Court rejected the taxpayers’ contention that the taxpayers ought to be allowed to prorate their personal deductions against their Oregon income in the same ratio that their total income bears to their Oregon income. The Tax Court correctly left such a proposal to the legislature. We do not pass upon the merits of the proposal. It simply cannot be read into the existing law. Affirmed.