Action by Sally L. Pabst and Patricia J. Pabst, trustees, against the Wisconsin Department of Taxation (hereinafter the "department") under the Wisconsin Administrative Procedure Act (ch. 227, Stats.) to review a decision of the Wisconsin board of tax appeals (hereinafter the "board") denying trustees' application to the board for abatement of income taxes assessed by the department for the tax years March 12-December 31, 1952, 1953, and 1954. The facts presented to the board were fully stipulated. The following facts are taken from such stipulation and also from taxpayers' petition to the circuit court for a review of the board's decision.

The instant trust is one of seven identical inter vivos trusts created under one trust instrument on August 19, 1935, by Ida C. Pabst, a Wisconsin resident. On March 1, 1952, one of the trustees, who was a Wisconsin resident, resigned and was replaced by Patricia J. Pabst who at all times material to this action was domiciled in Colorado. On March 8, 1952, another of the trustees, also a Wisconsin resident, resigned and was replaced by Sally L. Pabst who at all times material to this action was domiciled in Vermont. On March 12, 1952, the third trustee, who was then domiciled in Illinois, also resigned but no successor was appointed. The beneficiary of the trust is a daughter of the settlor and at all times material to this action was a resident of California.

Under the trust instrument the trustees were given discretion whether to distribute or accumulate income. Prior to 1952 the trustees decided not to distribute income to the beneficiary but rather to accumulate it. A tacit understanding existed among the trustees that all income would be accumulated unless there was a material change in the economic circumstances of the beneficiary. No such change came to the trustees' attention during any of the three tax years involved.

During 1952 and until May of 1953, the trustees held as a trust asset certain Wisconsin real estate known as the "Pabst Theatre." The decision to sell the theater premises was made by the trustees when approached by a group representing the purchaser. The negotiations leading up to the final approval of the sale price and terms by the trustees were conducted in Wisconsin by their attorneys. Rental income from the theater and gain on its sale were clearly taxable in Wisconsin, and the trustees raise no issue with respect to same.

All the other assets of the trust during the years in question were so-called "intangible assets" as follows: Stocks, bonds or securities, notes, and cash deposits in banks. One of the principal assets of the trust was stock in the Pabst Brewing Company. These shares of stock were held outside of Wisconsin at all times material to this action, although certain additional shares issued as a stock dividend were temporarily held in the office of Pabst Farms, Inc., near Oconomowoc, Wisconsin. Physical custody of all other shares of stock owned by the trustees was held by brokers in Chicago pursuant to a custodianship agreement. During 1952, the trust's bonds and securities were held by a Milwaukee bank. The notes with the mortgage papers securing some of them were at all times material to this action held in the office of Pabst Farms in Wisconsin.

After January 10, 1953, the trust's bonds were taken from Wisconsin and held in the custody of various trust companies outside Wisconsin, except for $20,000 par value United States treasury bonds together with an additional $50,000 par value United States government bonds acquired on February 15, 1954, which were held by a Milwaukee trust company. Income from trust assets held outside Wisconsin, including dividends and interest plus or minus net gains or losses on sales, was 96 percent, 87 percent, and 81 percent of total income received by the trustees in 1952, 1953, and 1954, respectively. During all three taxable years, the cash of the trust was kept in a checking account in a Milwaukee bank. During these three years, taxpayers gave written authorization to Robert E. Pabst, Fred Pabst, Jr., Harald Pabst, Rudolph Pabst, David Pabst, and Fred Pabst, the latter two being Wisconsin residents, to write checks on the trust checking account.

Mr. O. A. Weber, a resident of Wisconsin, was at all times material to this action employed by Fred Pabst, husband of settlor, in the office of Pabst Farms, Inc., near Oconomowoc. Weber also utilized desk space in an office maintained by Mr. Pabst in Milwaukee. For many years, Weber has represented the Pabst family in financial and investment matters. His opinion and judgment are highly respected and valued by all members of the Pabst family, including the trustees.

Throughout all of the taxable years in question, the trustees verbally delegated to Weber full and complete authority on behalf of the trust to carry out any transaction in the acquisition, holding, sale, or collection of any trust investment that Weber, in his sole discretion, deemed advisable. The Pabst Theatre and the Pabst Brewing Company stock alone were excluded from this grant of authority. Pursuant to such authority, Weber from time to time reviewed and evaluated possible investments to be made on behalf of the trust, and potential sales of its stock or securities. He exercised his independent judgment in all respects in making all of the purchases and sales of stocks and securities and in lending money on secured or unsecured notes given by various individuals to the trustees. All purchases, sales, and loans made during the time material to this action were made on the advice, judgment, and action of Weber with the sole exception noted above. It was Weber's practice, with respect to every purchase or sale, to send a statement of the transaction to both trustees together with a written form of approval. In every instance the trustees signed and returned such forms to Weber.

At the end of 1952, the assets of the trust were carried on the books at $656,358.66 with the stocks included therein listed at book value. With the exception of the Pabst Theatre, which was carried on the books at $120,396.26, Weber presumably exercised control over the remaining portion of the trust assets because no book value was stated for the Pabst Brewing Company stock and its listed market value of $1,080,475.50 was obviously not included in computing the total value of trust assets set out above. At the end of 1953, total trust assets were listed at $747,492.25 including the amount due in connection with the sale of the theater. Stocks were again carried at their book value. Presumably, Weber had control over all these assets because again no book value was listed for the Pabst Brewing Company stock, and its market value of $1,045,567.83 was obviously not included. At the end of 1954, total trust assets were listed on the books at $813,867.29 including stocks again listed at book value. Weber presumably had control over all such assets because no book value was listed for the Pabst Brewing Company stock, and again its market value of $833,628.40 was obviously not included.

All dividend checks paid on corporate stocks owned by the trust were sent in care of the Pabst Farms, Inc., office. Some interest payments were also made to that office although in general interest payments were collected by the trust company having custody of the bonds or securities involved. Dividend and interest checks received at the Pabst Farms, Inc., office were deposited by Weber or one of his associates in the trustees' account in a Milwaukee bank.

All of the original books and records of this trust were maintained at the office of Pabst Farms, Inc., and all entries in such books were made in Wisconsin by clerical help working for and under the direction of Weber. Weber received no compensation from the trust for any of his services nor was the trust charged with any overhead or office expense of the Oconomowoc or Milwaukee offices. Books of the trust consisted of a general ledger, cashbook, trial-balance book, and ledger. During each of the three years here involved, a firm of certified public accountants with offices in Milwaukee was employed to audit the trust books at the Pabst Farms, Inc., office. Copies of annual reports of such audits were supplied to the trustees. In addition the trustees from time to time engaged the services of a Milwaukee law firm to perform legal services for the trust.

The authority of Weber and his associates and the authority of various persons designated to write checks on the trust checking account was not revoked at any time by the trustees during the three years in question. At no time during any of the three tax years did the trustees meet together to discuss trust business, or by any other means hold a formal or informal meeting. Neither of the trustees spent more than two or three weeks in the aggregate in Wisconsin during any one of the three tax years involved.

Under date of March 19, 1959, the board entered its order which contained findings of fact, one conclusion of law, and its order denying the trustees' application for abatement and dismissing trustees' appeal to the board. The findings of fact stressed the various activities of Weber in the management and supervision of the trust. The single conclusion of law stated: "The trust was administered in Wisconsin and the income thereof was subject to chapter 71, Wisconsin statutes." The circuit court by judgment entered September 5, 1962, affirmed the order of the board. The trustees have appealed from such judgment.

CURRIE, J.

This appeal presents these two questions:

(1) Was the instant inter vivos trust "administered" in Wisconsin during the years 1952, 1953, and 1954, within the meaning of sec. 71.08 (8), Stats.?

(2) If sec. 71.08 (8), Stats., is construed to subject the income of this trust for these three years to Wisconsin income tax, does this statute as so construed violate the due-process clause of the Fourteenth amendment to the United States constitution?

Administration of the Trust in Wisconsin.

Sec. 71.08 (8), Stats., during the three-year period in question provided in part as follows:

"Trustees of trust estates created . . . by declaration of trust . . . shall annually make a return of all income received by them as such to the assessor of incomes of the county in which the trust . . . is being administered."

The key word of the statute, insofar as this appeal is concerned, is "administered." In Department of Taxation v. Pabst (1961), 15 Wis.2d 195, 112 N.W.2d 161, we had before us the application of this same statute to two other trusts created by the settlor Ida C. Pabst. The decision cited the definition of "administer" in Webster's New International Dictionary (3d ed., unabridged), which stressed the element of managing, directing, or superintending affairs.

Nevertheless, upon further consideration we now conclude that the statutory word "administered" as applied to an inter vivos trust of intangibles means simply conducting the business of the trust. The problem of determining whether such a trust is administered in Wisconsin may be made more difficult when the business of the trust is partly conducted in other states as well as in Wisconsin. In such a situation, a proper application of the statute would appear to require the conclusion that the trust is being administered in Wisconsin within the meaning of the statute if the major portion of the trust business is conducted in Wisconsin.

Having settled upon the meaning of the statutory word "administered" as applied to an inter vivos trust of intangibles, we must examine the facts to ascertain if the major business activities of the instant trust were carried on in Wisconsin during the three years in question. At the outset we are met by the contention of the attorney general that the board has made a factual determination that this trust was administered during those years in Wisconsin, and that a reviewing court is bound thereby under sec. 227.20 (1)(d), Stats., because this finding is supported by substantial evidence in view of the entire record as submitted.

All the facts before the board, however, were stipulated. In such a situation we deem the scope of judicial review to be that stated in Van Roy v. Industrial Comm. (1958), 5 Wis.2d 416, 425, 92 N.W.2d 818:

"The facts in the instant case are undisputed. In such a situation if but one inference can reasonably be drawn from such undisputed facts a question of law is presented and the finding of the commission to the contrary is not binding on the reviewing court; but, if more than one inference can reasonably be drawn, then the finding of the commission is conclusive. Schmidlkofer v. Industrial Comm. (1953), 265 Wis. 535, 538, 61 N.W.2d 862."

As pointed out in the Van Roy Case opinion, the California court in Reinert v. Industrial Accident Comm. (1956), 46 Cal.2d 349, 354, 294 P.2d 713, has adopted this same test of the scope of judicial review with respect to an administrative agency's decision where the facts are undisputed.

After setting forth its findings of fact, in the instant case, the board set forth its determination that the trust was administered in Wisconsin as a conclusion of law and not as a finding of fact. While the board's label is not conclusive with respect to determining the substance of the statement as either a conclusion of law or finding of fact, we deem it significant in this case. It indicates that the board considers that the application of sec. 71.08 (8), Stats., to its findings of fact, with respect to how the business of the trust has been carried on, involves a question of law. Errors of law are always reviewable by the reviewing court. Sec. 227.20 (1) (b).

In 4 Davis, Administrative Law Treatise, ch. 30, p. 189 et seq., Professor Davis points out that the United States supreme court employs two conflicting methods of administrative review where the issue is whether the administrative agency has correctly applied a statute to certain facts. The first is the so-called analytical approach whereby the court decides which part of the agency's determination presents a question of fact and which part a question of law. The second is the practical or policy approach which tries to avoid allocation of functions merely on the literal meaning of the terms "fact" and "law." When this practical approach is used, the court holds that, "`The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.'" On the other hand, Davis notes that when the court deems the question presented to be suitable for judicial determination, it feels free to substitute its own judgment for that of the agency. When the court substitutes its own judgment, however, it would appear that it in effect finds the agency's decision without rational basis in law or treats the issue analytically as a question of law for the court.

Davis states that the United States supreme court has not attempted to reconcile the conflict in its decisions which occurs as a result of sometimes applying the analytical approach and at other times the practical approach. He concludes that the court applies the analytical approach when it does not wish to be bound by the agency's application of a statute to a set of facts, and the practical approach when it believes the agency's application of the law should be deferred to. Davis believes that one of the most-important factors which influences the court's choice of approach in this field is the comparative qualification of court and agency to decide the particular issue. The court often deems agencies and their staffs to be expert within their own specialized fields. In such situations, the practical approach is likely to be employed rather than the analytical in determining the scope of review to be applied.

We believe that pars. (b) and (d) of sec. 227.20 (1), Stats., require Wisconsin courts to employ the analytical approach when reviewing agency decisions. Nevertheless, in fields in which an agency has particular competence or expertise, the courts should not substitute their judgment for the agency's application of a particular statute to the found facts if a rational basis exists in law for the agency's interpretation and it does not conflict with the statute's legislative history, prior decisions of this court, or constitutional prohibitions.

In the instant case, we do not deem the board more competent than this court to decide a question of law involving trust administration. On the other hand, if we were dealing with a question concerning an accounting procedure to be followed, we might well defer to the board's conclusion in the matter. Therefore, we conclude that the instant question of trust administration, upon the undisputed, stipulated facts, presented a question of law reviewable by both the circuit court and this court. Although this conclusion may be difficult to reconcile with some of the language in Department of Taxation v. Pabst, supra, we deem it correct in view of the above analysis of the problem.

Having determined the scope of judicial review applicable in the instant case, we may now review the board's conclusion of law. The facts upon which the board's conclusion was based were clearly supported by substantial evidence in view of the entire record as submitted. Moreover, upon review of such facts we reach the same conclusion of law as did the board when it determined that the trust was administered in Wisconsin during 1952, 1953, and 1954 within the meaning of sec. 71.08 (8), Stats. During these three years, Weber, while acting on his own initiative and sole responsibility, invested about $183,000 in stocks and bonds, $80,000 in notes secured by mortgages, and $409,000 in other notes which were primarily unsecured. During this same period, he exercised the responsibility delegated by the trustees for investing and reinvesting trust assets in amounts varying from about $535,000 to $813,000. Moreover, the only business office of the trust was at Pabst Farms, Inc., where all trust records were kept and all bookkeeping and clerical work was done under Weber's supervision.

While Weber managed, directed, and supervised the affairs of the trust during this period, the two trustees made but one decision, namely, to sell the theater property. The decisions to accumulate trust income until a material change occurred in the financial circumstances of the beneficiary, and to retain the Pabst Brewing Company stock had been made by the predecessor trustees. The two trustees did not even hold a meeting during these three years to discuss trust business. The record before the board clearly established that the major portion of the business of the trust was conducted in Wisconsin during the period in question. The essential difference in the facts in Department of Taxation v. Pabst, supra, which distinguishes that case from this, is that there the investing policies were determined and put into effect outside of Wisconsin.

The Constitutional Issue.

The trustees contend that if sec. 71.08 (8), Stats., is interpreted to permit the taxing by Wisconsin of trust income derived from intangibles for the years in question, then that statute violates the due-process clause of the Fourteenth amendment. The trustees take the position that under the rule, mobilia sequuntur personam, the situs of this income is the place of residence of the trustees, not Wisconsin, and, therefore, Wisconsin lacks jurisdiction to impose a tax thereon. In support of this position they cite Newport Co. v. Tax Comm. (1935), 219 Wis. 293, 261 N.W. 884, Briggs Stratton Corp. v. Department of Taxation (1946), 248 Wis. 160, 21 N.W.2d 441, and Kimberly-Clark Corp. v. Department of Taxation (1946), 248 Wis. 165, 21 N.W.2d 441.

In the Newport Co. Case, Wisconsin attempted to tax as income the profit made from the sale of certain corporate stock by the Newport Company. The taxpayer was a Delaware corporation engaged in manufacturing and licensed to do business in Wisconsin. Over 70 percent of the corporation's business was transacted in Wisconsin. The tax commission contended that the state had the right to tax this sale of corporate stock under sec. 71.02 (3) (e), Stats. 1927, which provided that a foreign corporation that carried on its principal business in Wisconsin would be deemed a resident of the state for income-tax purposes. This court, however, held that it was bound by the decisions of the United States supreme court with respect to the taxing power of a state over foreign corporations transacting business therein; and that sec. 71.02 (3) (e), Stats. 1927, was unconstitutional and void in view of such decisions. In its decision the court said (p. 306):

"It thus appears to be the rule, established by the United States supreme court, and heretofore recognized by this court, that as to nonresidents there may be no imposition of income taxes upon income derived from property or business located without the state; that the situs of such intangibles as corporate stock is the domicile of the owner; that since property of this character, owned by a foreign corporation, is not located within the state of Wisconsin, it is not subject to an income tax levied by this state."

had the department in the Briggs Stratton Corp. Case, that the Newport Co. Case was wrongly decided in view of First Bank Stock Corp. v. Minnesota, supra, and Chestnut Securities Co. v. Oklahoma Tax Comm.) supra. Again, for reasons explained in the Cudahy Case opinion, this court did not pass on this contention.

These two last-cited federal cases carve out a business situs exception to the application of the rule, mobilia sequuntur personam, and hold that a state may tax income of a foreign corporation derived from intangibles, where the actual business situs of the corporation is within the taxing state, without running afoul of the due-process clause of the Fourteenth amendment. Appellant trustees concede that these cases so hold but contend that the business-situs exception to the rule, mobilia sequuntur personam, does not apply to trusts because they are not engaged in a business. We do not deem this a valid basis upon which to distinguish those two cases.

We are convinced that there has been a definite trend in the United States supreme court's decisions away from the rigid rules, which it laid down in the early 1930's, relating to jurisdiction of states to tax income. Under the later decisions of that court, the test seems to be whether the state which attempts to tax has a sufficient nexus with the production of the income to afford a constitutional basis for imposing the tax. This court recently had occasion to consider the nexus test of the United States supreme court in Moore Motor Freight Lines v. Department of Taxation (1961), 14 Wis.2d 377, 111 N.W.2d 148, in considering the jurisdiction of Wisconsin to tax income derived from interstate commerce. We concluded that the controlling circumstance, in passing on the question of whether there is sufficient nexus to tax, is "whether the state has given anything for which it can ask return," citing Wisconsin v. J. C. Penney Co. (1940), 311 U.S. 435, 444, 61 Sup. Ct. 246, 85 L.Ed. 267, 130 A.L.R. 1229.

In the instant case Wisconsin has extended the protection of its laws to the activities of Weber in carrying on the business of the trust at the office of Pabst Farms, Inc. Although no rent was paid by the trust for the use of such office, we deem this an entirely fortuitous circumstance. The only office that the trust had was maintained in Wisconsin and the major portion of the trust's business was transacted here during the period in question. We are satisfied there was a sufficient nexus with Wisconsin to permit it to impose the income taxes which it did, and we so hold.

By the Court. — Judgment affirmed.