Property owned by the United States is, of course, wholly immune to State taxation.[82] No State can regulate, by the imposition of an inspection fee, any activity carried on by the United States directly through its own agents and employees.[83] An early case whose authority is now uncertain held invalid a flat rate tax on telegraphic messages, as applied to messages sent by public officers on official business.[84]

FISCAL INSTITUTIONS; LEGISLATIVE EXEMPTIONS

Fiscal institutions chartered by Congress, their shares and their property, are taxable only with the consent of Congress and only in conformity with the restrictions it has attached to its consent.[85] Immediately after the Supreme Court construed the statute authorizing the States to tax national bank shares as allowing a tax on the preferred shares of such a bank held by the Reconstruction Finance Corporation,[86] Congress passed a law exempting such shares from taxation. The Court upheld this measure saying, "when Congress authorized the States to impose such taxation, it did no more than gratuitously grant them political power which they theretofore lacked. Its sovereign power to revoke the grant remained unimpaired, the grant of the privilege being only a declaration of legislative policy changeable at will."[87] In Pittman v. Home Owners' Loan Corporation[88] the Court sustained the power of Congress under the necessary and proper clause to immunize the activities of the Corporation from state taxation; and in Federal Land Bank v. Bismarck Lumber Co.,[89] the like result was reached with respect to an attempt by the State to impose a retail sales tax on a sale of lumber and other building materials to the bank for use in repairing and improving property that had been acquired by foreclosure of mortgages. The State's principal argument proceeded thus: "Congress has authority to extend immunity only to the governmental functions of the federal land banks; the only governmental functions of the land banks are those performed by acting as depositaries and fiscal agents for the federal government and providing a market for governmental bonds; all other functions of the land banks are private; petitioner here was engaged in an activity incidental to its business of lending money, an essentially private function; therefore § 26 cannot operate to strike down a sales tax upon purchases made in furtherance of petitioner's lending functions."[90] The Court rejected this argument and invalidated the tax saying: "The argument that the lending functions of the federal land banks are proprietary rather than governmental misconceives the nature of the federal government with respect to every function which it performs. The federal government is one of delegated powers, and from that it necessarily follows that any constitutional exercise of its delegated powers is governmental. * * * It also follows that, when Congress constitutionally creates a corporation through which the federal government lawfully acts, the activities of such corporation are governmental."[91] However, in the absence of federal legislation, a state law laying a percentage tax on the users of safety deposit services, measured by the banks' charges therefor, was held valid as applied to national banks. The tax, being on the user, did not, the Court held, impose an intrinsically unconstitutional burden on a federal instrumentality.[92]

THE ATOMIC ENERGY COMMISSION; "ACTIVITIES" OF

In the recent case of Carson v. Roane-Anderson Co.,[93] the Court was confronted with an attempt on the part of Tennessee to apply its tax on the use within the State of goods purchased elsewhere to a private contractor for the Atomic Energy Commission and to vendors of such contractors. This, the Court held, could not be done under Section 9 b of the Atomic Energy Commission Act, which provides in part that: "The Commission, and the property, activities, and income of the Commission, are hereby expressly exempted from taxation in any manner or form by any State, county, municipality, or any subdivision thereof."[94] The power of exemption, said the Court, "stems from the power to preserve and protect functions validly authorized—the power to make all laws necessary and proper for carrying into execution the powers vested in Congress."[95] The term, "activities," as used in the Act described, was held to be nothing less "than all of the functions of the Commission."[96]

ROYALTIES; A JUDICIAL ANTICLIMAX

In 1928 the Court went so far as to hold that a State could not tax as income royalties for the use of a patent issued by the United States.[97] This proposition was soon overruled in Fox Film Corp. v. Doyal,[98] where a privilege tax based on gross income and applicable to royalties from copyrights was upheld. Likewise a State may lay a franchise tax on corporations, measured by the net income from all sources, and applicable to income from copyright royalties.[99]

IMMUNITY OF LESSEES OF INDIAN LANDS

Another line of anomalous decisions conferring tax immunity upon lessees of restricted Indian lands was overruled in 1949. The first of these cases, Choctaw O. & G.R. Co. v. Harrison,[100] held that a gross production tax on oil, gas and other minerals was an occupational tax, and, as applied to a lessee of restricted Indian lands, was an unconstitutional burden on such lessee, who was deemed to be an instrumentality of the United States. Next the Court held the lease itself a federal instrumentality immune from taxation.[101] A modified gross production tax imposed in lieu of all ad valorem taxes was invalidated in two per curiam decisions.[102] In Gillespie v. Oklahoma[103] a tax upon the net income of the lessee derived from sales of his share of oil produced from restricted lands also was condemned. Finally a petroleum excise tax upon every barrel of oil produced in the State was held inapplicable to oil produced on restricted Indian lands.[104] In harmony with the trend to restricting immunity implied from the Constitution to activities of the Government itself, the Court overruled all these decisions in Oklahoma Tax Comm'n v. Texas Co. and held that a lessee of mineral rights in restricted Indian lands was subject to nondiscriminatory gross production and excise taxes, so long as Congress did not affirmatively grant them immunity.[105]

SUMMATION AND EVALUATION