by John Marshall Harlan

“ Without provisions protecting the bank against the burdens of the tax, we cannot assume that the statute's operation will not infringe on the immunity of the federal obligations held by the banks. It is not adequate merely to suggest that a bank may be entitled to make itself whole from the depositors under Ohio common law. For no such common-law right has been called to our attention. Rather, the Ohio court's opinion indicates that the bank may be left without any right of reimbursement. ”

“ If, for example, a bank has $100,000 of undivided profits, intends to pay its depositors $75,000 interest on their deposits, and has an obligation for this tax of $10,000, it perhaps makes no difference whether the bank pays $65,000 to its depositors, without recovering anything back from them, or pays them $75,000, but later recovers back the $10,000 tax paid for their account. ”

“ This result was reached in part on the theory that the stockholders' interests in a corporation represent a separate property interest from the corporation's ownership of its assets, so that a tax on the stockholders' interests is not a tax on the federal obligations which are included in the corporate property. This rationale has been carried over to cases involving stock of state-created banks, and thus a tax on their shareholders, though measured by corporate assets which include federal obligations, is held not to offend the rule immunizing such obligations from state taxation. ”