THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION-STATE OF POHNPEI
Cite as Rauzi v. FSM, 2 FSM Intrm. 8 (Pon. 1985)

[2 FSM Intrm. 8]

EDWIN RAUZI,
Plaintiff,

vs.

FEDERATED STATES OF MICRONESIA,
Defendant.

CIVIL 1984-047

Before Edward C. King
Chief Justice
March 21, 1985

APPEARANCES:

For the Plaintiff:		Edwin Rauzi
Attorney-at-Law
Kolonia, Pohnpei 96941

For the Government:	W. Alan Lautenan
Assistant Attorney General
Federated States of Micronesia
Kolonia, Pohnpei 96941

[2 FSM Intrm. 9]

HEADNOTES

Common Law; Statutes-Taxation
There appears to be uniform acceptance by common law jurisdictions of the principle that government officials are considered employees for income tax purposes. This amounts to a common law rule of taxation and yields a result in harmony with the underlying principles of the taxation system established by the Federated States of Micronesia Income Tax Law. Rauzi v. FSM, 2 FSM Intrm. 8, 12 (Pon. 1995).

Public Service Employees; Taxation
A Pohnpei State Government official is an employee for purposes of the Federated States of Micronesia income Tax Law. Rauzi v. FSM, 2 FSM Intrm. 8, 12 (Pon. 1985).

Prosecution; Public Service Employment
The high public office of state prosecutor may be the most powerful office in our system of justice. The prosecutor invokes and implements the sovereign powers of the state in the justice system and is given a wide degree of discretion in so doing. Rauzi v. FSM, 2 FSM Intrm. 8, 13 (Pon. 1985).

Common Law; Courts; Statutes
By its terms, 1 F.S.M.C. 203 pointing to the Restatements as a guide for determining and applying the common law applies only to "courts of the Trust Territory." Since only courts established by the Trust Territory administration existed when the section was issued, it plainly was intended only for those courts at that time. Rauzi v. FSM, 2 FSM Intrm. 8, 14 (Pon. 1985).

Court; Statutes
Since the Trust Territory High Court and District Courts were still active at the time of codification, provisions in the FSM Code referring only to them quite likely were intended only to regulate those courts. Rauzi v. FSM, 2 FSM Intrm. 8, 14 (Pon. 1985).

Common Law; Courts; Statutes
In absence of any persuasive considerations to the contrary, it is logical to conclude that 1 F.S.M.C. 203 pointing to the Restatements as a guide for determining and applying the common law applies only to courts of the Trust Territory, not to courts of the Federated States of Micronesia or the various states. Rauzi v. FSM, 2 FSM Intrm. 8, 14 (Pon. 1985).

Common Law; Courts; Custom and Tradition; Statutes
1 F.S.M.C. 203, with its sweeping mandate that the Restatements and other common law rules as applied in the United States be the "rules of decision," would lure the courts in a direction other than that illuminated by the Constitution's Judicial Guidance Provisions, FSM Const. art. XI, § 11,

[2 FSM Intrm. 10]

which identifies as the guiding star, not the Restatement or decisions of United States courts concerning common law, but the fundamental principle that decisions must be consistent with the "Constitution, Micronesian customs and tradition, and the social geographical configuration of Miicronesia." Rauzi v. FSM, 2 FSM Intrm. 8, 14 (Pon. i985).

Courts; Precedent
The FSM Supreme Court can and should consider the Restatement and reasoning of courts in the United States and other jurisdiction in arriving at its own decisions although it is not bound by those decisions and must not fall into the error of adopting the reasoning of those decisions without independently considering suitability of that reasoning for the Federated States of Micronesia. Rauzi v. FSM, 2 FSM Intrm. 8, 14-15 (Pon. 1985).

Common Law; Public Service; Taxation
No common law rule has been applied universally in all contexts to determine the status of government officials. Rauzi v. FSM, 2 FSM Intrm. 8, 15 (Pon. 1985).

Common Law; Torts; Agency
Under the common law there are only two reasons for distinguishing between agents of a principal who are "servants" or "employees" of the principal and agents who are independent contractors.
The most common is to determine the possible liability of the principal for torts of the agent within the scope of employment.
The second purpose is to determine the obligations, rights and immunities between the principal and the agent. The earlier common law rules making distinctions for this purpose have for the most part been supplanted by social legislation such as workers' compensation, minimum wage, fair labor standards, social security and income tax laws. Rauzi v. FSM, 2 FSM Intrm. 8, 15 (Pon. 1985).

Defenses; Prosecution; Public Service Employment; Torts
Some government workers have been held partially or completely immune from tort liability on grounds that they are public officers. This immunity, intended to serve the purpose of encouraging fearless and independent public service, has been bestowed upon prosecutors as well as other public officials. Rauzi V. FSM, 2 FSM Intrm. 8, 16 (Pon. 1985).

Public Service Employment; Torts; Agency
The emphasis in governmental tort liability cases has been on the special status of government, its functions and its officials rather than on the degree of control tests commonly employed in nongovernmental cases. Even those commentators who specifically note that the respondeat superior doctrine applies to the government analyse governmental liability issues in terms of public policy considerations rather than through a degree of control analysis which distinguishes between closely supervised and high-ranking officials.

[2 FSM Intrm. 11]

Rauzi v. FSM, 2 FSM Intrm. 8, 16 (Pon. 1985).

Common Law; Public Service Employment; Taxation
There is a common law of taxation which addresses the status of public officials as employees. Rauzi v. FSM 2 FSM Intrm. 8, 17 (Pon. 1985).

Common Law; Statutes
The common law for the Federated States of Micronesia referred to at 54 F.S.M.C. 112(3) is not based upon the law of England at the time of the American Revolution but upon the law of the United States, the Trust Territory and other nations in the common law tradition up to the initiation of constitutional government in 1979. Rauzi v. FSM, 2 FSM Intrm. 8, 17 (Pon. 1985).

Common Law; Statutes
Common law principles may be drawn from statutes as well as court decisions. While the common law is articulated through court decisions, it has its source in legislative action as well as court decisions. Rauzi v. FSM, 2 FSM Intrm. 8, 17 (Pon. 1985).

Taxation
The FSM Income Tax Law's distinction between employees and businesses obviously reflects congressional expectation that businesses and employers are generally distinguishable on the basis of whether generation of their income would require substantial expenditures by them. Rauzi v. FSM, 2 FSM Intrm. 8, 19 (Pon. 1985).

* * * *

COURT'S OPINION

EDWARD C. KING, Chief Justice:

This action is brought by a taxpayer seeking declaratory judgment and an injunction to prevent the Federated States of Micronesia from taxing him as an employee under the Federated States of Micronesia Income Tax Law, 54 F.S.M.C. 111 et seq.

Plaintiff Edwin Rauzi contends that he must be regarded as a "business," 54 F.S.M.C. 112(1), subject to the gross revenue tax. The Federated States of Micronesia national government says he is subject to the higher tax on wages

[2 FSM Intrm. 12]

and salaries of employees under 54 F.S.M.C. 121.

The statutory definition of employee, 54 F.S.M.C. 112(3), tells us to apply the "usual common law rules applicable in determining the employer-employee relationship." Both parties think this means we should apply the "degree of control" standards set out in the Restatement (Second) of Agency § 220 (1958) for distinguishing between employees and independent contractors. Under those tests full time government workers, including high level public officials, could fall into different tax categories, depending on such factors as whether they serve under higher officials who supervise them closely. The highest ranking and unsupervised officials might sometimes qualify as businesses subject to the lower tax rate.

The Court rejects that analysis. I find no indication that degree of control tests have ever been applied anywhere to determine whether a state prosecutor or any other governmental official of comparable rank is an "employee" of that government for income tax purposes. To the contrary, there appears to be uniform acceptance by common law jurisdictions of the principle that government officials are considered employees for income tax purposes.

This amounts to a common law rule of taxation and yields a result in harmony with the underlying principles of the taxation system established by the Federated States of Micronesia Income Tax Law. I therefore conclude that the plaintiff, because he is a government official, is an employee of the Pohnpei State Government for purposes of the Federated States of Micronesia Income Tax Law.

Factual Background

Plaintiff is an attorney, a United States citizen, who has served as a high-ranking official of the Pohnpei State Government since early March, 1984. Pursuant to a one year contract with the State of Pohnpei, he has been Pohnpei's chief litigator. Although he has handled some civil matters for the state, Rauzi's principal responsibility has been to serve as state prosecutor.

The contract, designated a "Contract For Service By Independent Contractor (Non-Employment Status)" calls for him to "render legal services to the State in the capacity of Special Counsel to the State Attorney" and "to perform such tasks as are designated by the State Attorney." Plaintiff introduced evidence that there has been no State Attorney in the State of Pohnpei during his year here. Instead, the Office of Legal Affairs has been supervised by a non-lawyer Director of Legal Affairs. Plaintiff emphasizes that

[2 FSM Intrm. 13]
the relationship between the Director of Legal Affairs and plaintiff has been considerably different from the relationships that plaintiff says he had with attorneys who supervised him in other work situations. In those other circumstances, plaintiff says, his supervisors reviewed his work and often recommended changes and required insertion or deletion of various theories or legal arguments. Plaintiff emphasizes, and the Director of Legal Affairs confirms, that no similar supervisory powers have been exercised by plaintiff's director. Indeed, plaintiff suggests that it might be illegal or unethical for him to accept direction from a non-attorney supervisor concerning details of his legal work for this in effect would permit his supervisor to be practicing law while plaintiff would be abdicating his own responsibility to exercise judgment as an attorney.

Legal Analysis

A crucial consideration here is that the plaintiff is not just a person who has been doing some work for the Pohnpei State Government. For the past year he has held the high public office of state prosecutor. This may be the most powerful office in our system of justice. Nix v. Ehmes, 1 FSM Intrm. 114 (Pon. 1982). The prosecutor invokes and implements the sovereign powers of the state in the justice system and is given a wide degree of discretion in so doing. Id. See also FSM v. Mudong, 1 FSM Intrm. 135 (Pon. 1982). The fact that he has been permitted to exercise those powers without super vision by an attorney and with relatively little supervision by anyone has made him an even more powerful public official.

The common law rule for which we are searching then is the rule which will tell us whether this kind of high ranking government official is to be considered an employee of the government for income tax purposes.

Plaintiff's argument turns on the definition of "employee" in the Federated States of Micronesia Income Tax Law, 54 F.S.M.C. 112(3), as *any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee."

A.	The Common Law

1.	The "restatement provision" - Plaintiff contends that the tax law's definition of "employee" compels reference to the Restatement (Second) of Agency (1958) to determine the "usual common law rules applicable in determining the employer-employee relationship." The Restatement is also invoked on the basis of 1 F.S.M.C. 203 which points to the Restatement as a guide for determining and applying the common law:

The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute and, to the extent not so expressed, as generally understood and applied in

[2 FSM Intrm. 14]

the United States, shall be the rules of decision in the courts of the Trust Territory in applicable cases, in the absence of written law applicable under section 201 of this chapter or local customary law applicable under section 202 of this chapter to the contrary and except as otherwise provided in section 205 of this chapter ....

This "restatement provision" apparently was first promulgated by a High Commissioner of the Trust Territory of the Pacific Islands, before establishment of the Congress of Micronesia in 1965. It has never been amended or actively considered by any legislative body within the Trust Territory or the Federated States of Micronesia. The provision remains. effective within the Federated States of Micronesia, FSM Const. art. XV, § 1, but there is no indication that it pertains to cases before this Court.

By its terms, 1 F.S.M.C. 203 applies only to "courts of the Trust Territory." Since only courts established by the Trust Territory administration existed when the section was issued, it plainly was intended only for those courts at that time. There may be instances where the mere fact that a section has been included by Congress in the codification of the law of the Federated States of Micronesia would be a strong indication that the section is to be honored and applied by this Court. This could be so, for example, if the provision would be stripped of all meaning and possible application by an interpretation that it is only applicable to Trust Territory authorities.

That is not so with statutory provisions applicable to the Trust Territory courts however. Since the Trust Territory High Court and District Courts were still active at the time of codification, provisions in the Code referring only to them quite likely were intended only to regulate those courts. In re Raitoun, 1 FSM Intrm. 561, 564 (App. 1984). In absence of any persuasive considerations to the contrary, it is logical to conclude that 1 F.S.M.C. 203 applies only to courts of the Trust Territory, not to courts of the Federated States of Micronesia or the various states.

There is another reason for concluding that the restatement provision, with its sweeping mandate that the Restatement and other common law rules as applied in the United States be the "rules of decision," does not bind the new constitutional courts. The restatement provision would lure us toward a different navigational course than that illumined by the Constitution's Judicial Guidance Provision. FSM Const. art. XI, § 11. The constitutional provision identifies as our guiding star, not the Restatement or decisions of United States courts concerning the common law, but the fundamental principle that our decisions must be consistent with the "Constitution, Micronesian customs and tradition, and the social and geographical configuration of Micronesia."

Of course, this Court can and should consider the Restatement and

[2 FSM Intrm. 15]

reasoning of courts in the United States and other jurisdictions in arriving at its own decisions.

What is clear from the Constitution, however, is that we are not to consider ourselves bound by those decisions and must not fall into the error of adopting the reasoning of those decisions without independently considering suitability of that reasoning for the Federated States of Micronesia.

Alaphonso v. FSM, 1 FSM Intrm. 209, 213 (App. 1982). Review of the common law and references to the Restatement in this opinion, then, are for the purpose of applying the definition of 54 F.S.M.C. 112(3), not to comply with 1 F.S.M.C. 203.

2.	The common law tests - As the following discussion will show, there is no common law rule which has been applied universally in all contexts to determine the status of government officials. It is therefore necessary to select the proper common law rule with care, searching especially for any rule adopted specifically with government workers in mind. We should also seek rules developed in a social or factual context similar to this case involving taxation.

a. Employer tort liability - Under the common law there are only two reasons for distinguishing between agents of a principal who are "servants" or "employees" of the principal and agents who are independent contractors. W. Seavey, Agency § 66 (1964).

The most common purpose is to determine the possible liability of the principal for torts of the agent within the scope of employment. Id. For this purpose courts rely upon a series of guidelines aimed at determining whether the principal had sufficient control over the details of the agent's work so that it seems fair to hold the principal responsible if the agent's negligence or wrongdoing caused injury to some other person. Restatement (Second) of Agency, § 220 (1958). These "degree of control" tests are urged by plaintiff as the appropriate standards to determine whether he is an employee of the Pohnpei State Government under the Income Tax Law. If these degree of control tests were determinative, plaintiff's claim that he has been relatively unsupervised would be a significant factor implying that he is an employee of the Pohnpei State Government for tort law purposes.

However, the law has long regarded government workers differently from non-government workers, even in tort cases. Rather than routinely applying degree of control tests in government cases, the courts have focused on different considerations, recognizing fundamental differences between the role of government and that of private organizations. An important consideration in the law concerning government liability has been the common law doctrine of

[2 FSM Intrm. 16]

sovereign immunity. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § l (5th ed. 1984). Liability of government has typically turned on the type of activities and functions which gave rise to the injuries rather than the degree of control exercised by governmental supervisors.

Similarly, some government workers have been held partially or completely immune from tort liability on grounds that they are public officers. Id. § 132. This immunity, intended to serve the purpose of encouraging fearless and independent public service, has been bestowed upon prosecutors as well as other public officials. Id.

The emphasis in governmental tort liability cases, then, has been on the special status of government, its functions and its officials rather than on the degree of control tests commonly employed in nongovernmental cases. Even those commentators who specifically note that the respondeat superior doctrine applies to the government analyze governmental liability issues in terms of public policy considerations rather than through a degree of control analysis which distinguishes between closely supervised and high-ranking officials. Casner & Fuller, Municipal Tort Liability in Operation, 54 Harv. L. Rev. 437 (1941). It should be remembered also that the degree of control rules have. been developed to address situations where an innocent injured third party is seeking redress. There is no such factor involved in the income tax setting of this case. Plaintiff has not brought to the Court's attention, and the Court has been unable to find, any statute or case holding that the status of a government official for tax purposes should be determined by using the degree of control tests.

Thus, it would seem odd and perverse for this Court to adopt those degree of control tests developed in a different context for nongovernment parties as controlling the status of a public official under our Income Tax Law.

c.	Employment relationships - The second purpose of the common law employee-independent contractor distinction is to determine the obligations, rights and immunities between the principal and the agent. Seavey, supra, § 66. The earlier common law rules making distinctions for this purpose have for the most part been supplanted by social legislation such as

[2 FSM Intrm. 17]

workers' compensation, minimum wage, fair labor standards, social security and income tax laws. Id. The coverage of these laws may vary depending on the public policy underlying the legislation. Id.

This being so, the proper line of inquiry is to determine whether there is a common law rule governing the status of public officials for social legislation of the kind under consideration here. I conclude that there is a common law of taxation which addresses the status of public officials.

3. Public officials under common law of taxation.

In the United States, the term "common law" was originally taken to mean all the statutory and case law background of England and the American colonies before the American Revolution. Black's Law Dictionary 251 (5th ed. 1979). The common law then probably did not address the status of public officials as employees of government for income tax purposes.

However, the common law for the Federated States of Micronesia referred to at 54 F.S.M.C. 112(3) is not based upon the law of England at the time of the American Revolution but upon the law of the United States, the Trust Territory and other nations in the common law tradition up to the initiation of constitutional self-government in 1979. Cf. In re Nahnsen, 1 FSM Intrm. 97, 103-04 (Pon. 1982). There is now a broad base of tax law from which general principles may be drawn.

These principles may be drawn from statutes as well as court decisions. While the common law is articulated through court decisions, it has its source in legislative action as well as court decisions.

This appreciation of the broader role played by legislation in the development of the law reflects the practices of common-law courts from the most ancient times. As Professor Landis has said, "much of what is ordinarily regarded as 'common law' finds its source in legislative enactment." ... It has always been the duty of the common-law court to perceive the impact of major legislative innovations and to interweave the new legislative policies with the inherited body of common-law principles--many of them deriving from earlier legislative exertions.

Moragne v. States Marine Lines, Inc., 398 U.S. 375, 392, 90 S. Ct. 1772, 1783, 26 L. Ed. 2d 339, 352 (1970).

Taxation statutes uniformly reflect the principle that public officers are government employees for income tax purposes. The Court has reviewed every tax code available on Pohnpei. This includes the United

[2 FSM Intrm. 18]

States, ten of the fifty states of the United States, the United States Territory of American Samoa, and the Republic of Fiji.

Under these statutes, state attorneys general and prosecutors across the United States, as well as governors, congressmen and legislators, chief justices and judges, the President of the United States, the Governor of American Samoa and the Prime Minister of Fiji all are regarded as government

[2 FSM Intrm. 19]

employees for purposes of income taxation. The fact that each of these thirteen tax systems regards an officer of a government as an employee of that government for purposes of income taxes establishes a common law principle of tax law to that effect.

B.	Policy Considerations

For several reasons, this common law tax rule must be applied in this tax case rather than the common law degree of control tests urged by plaintiff. First, it fits the facts of this case. The tax rule has been developed by jurisdictions looking at the status of public officials specifically in the context of taxation. In stark contrast, the degree of control tests were developed for application to non-government workers in a tort law setting where the interests of third party victims loomed large.

Second, the tax rule may be applied much more efficiently and with far less intrusion into the operations of government and activities of the taxpayer. The degree of control test would require detailed consideration of each officer's job duties including, as plaintiff's arguments here demonstrate, careful assessment not only of the written job description but also how the work actually is carried out and supervised.

Finally, the common law tax rule's uniform approach, treating each government official as an employee, is in greater symmetry with the Income Tax Law. Aside from the dubious fairness of taxing lower paid employees at a higher rate than their better paid supervisors, such a result would be at cross purposes with the Tax Law's provisions fixing lower rates and special deductions for lower income levels.

The Income Tax Law's distinction between employees and businesses obviously reflects congressional expectation that businesses and employers are generally distinguishable on the basis of whether generation of their income would require substantial expenditures by them. Substantial portions of gross revenue of businesses must often be allocated to payment of employees, rental of a place of business, purchase of inventory for resale and other similar business expenses. Although much and sometimes even all of the gross revenue may be unavailable for personal use of the business owner, the tax is

[2 FSM Intrm. 20]

nevertheless calculated against all revenue. Hence the lower rate.

An employee, on the other hand, normally does not incur substantial current expenses to earn income. The employee's working place and tools, for example, would typically be provided by the employer at no cost to the employee. With this distinction in mind, the application of a higher rate to the employee, who typically can use most or ali of his income as he wishes, is understandable.

These standards applied to Rauzi’s working situation confirm that he should be taxed as an employee. Although he represented that he bought the pen he was using during the hearing of this case, there is no suggestion that he incurred any substantial expenses in order to earn the income which the government seeks to tax.

Admittedly, the "substantial expenditure" test is suggested only indirectly by the categories constructed under the Tax Law, and is not specified in the law as the test to be employed in determining whether a government official is an employee. This is nevertheless a useful indicator to assist in verifying whether the common law test being applied is correct. The substantial expenditure test offers reassurance that the result here is not an unjust one.

Conclusion

Plaintiff Edwin Rauzi is an employee of Pohnpei State Government because he is a public officer of that government. This conclusion is required by the fact that, in the law of taxation, there is a widely accepted principle, tantamount to a common law rule, that public officers and government officials are employees.

Plaintiff's requests for relief are therefore denied.

* * * *