Howell & Graves v. Curry
| Citation | 5 So.2d 105,242 Ala. 122 |
| Decision Date | 13 June 1941 |
| Docket Number | 3 Div. 335. |
| Court | Supreme Court of Alabama |
| Parties | HOWELL & GRAVES, Inc., v. CURRY, Com'r of Revenue |
Rehearing Denied Dec. 18, 1941.
Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.
Andrews & Almon, of Sheffield, and John H. Peach, of Decatur, for appellant.
Thos S. Lawson, Atty.Gen., and John W. Lapsley and J. Edw. Thorton, Asst.Attys.Gen., for appellee.
This is a bill filed under and by virtue of the Declaratory Judgment Act, General Acts 1935, pages 777, et seq., Code 1940, Tit 7, §§ 156-168, by Howell and Graves, a corporation organized under the laws of the state of Delaware, but qualified to do business in the state of Alabama, against John C. Curry, as Commissioner of Revenue of Alabama.
The bill seeks a declaration of complainant's rights relative to an assessment for foreign corporation franchise taxes made by the State Tax Commission (now the State Department of Revenue) in the year 1934. The cause was submitted on an agreed statement of facts. The controlling facts are substantially as follows: On March 15, 1934, complainant filed with the State Tax Commission of Alabama its return for foreign corporation franchise tax for the year 1934. The State Tax Commission computed the tax from the data thus supplied, and on August 1, 1934, entered on the return, in a space designated "this space for use of the State Tax Commission," the sum of $2,124.94, as and for the foreign corporation franchise tax assessment due by complainant for the year 1934. The return was then placed in the permanent records of the State Tax Commission in accordance with the following provision on the face of the return:
Complainant admits that it received notice of the foregoing assessment, but does not admit that it was sent by registered mail.
On October 20, 1934, the State Tax Commission added a notation on the return, in the space marked "this space for use of the Tax Commission," as follows: "October 20, 1934, account good will see letter, $200.00." At the same time, and on the line on said return where it is stated "balance due," the commission entered the amount $1,924.94. Notice of the abatement was mailed to and received by the agent of complainant designated for that purpose. No further action of any kind was taken on the assessment for more than five years.
The bill alleges that now, more than five years after the final assessment was made, the State Department of Revenue (successor to the State Tax Commission) threatens execution on the assessment.
Complainant insists the assessment itself is invalid because of the failure of the Tax Commission to follow the provisions of General Acts of 1927, pages 139-181, in making the assessment. And, further, that the statute of limitation of five years bars the State's right to an execution on the assessment.
On the questions presented relative to the validity of the assessment, section 65 of the Revenue Act of 1927, supra, provides:
We are of the opinion that the action of the State Tax Commission on August 1, 1934, constitutes the final assessment in this case. No appeal was taken from that action of the Commission. Whether the action of the commission on October 20, 1934, in entering the decree abating the assessment in the sum of $200 on account of error of calculation in response to the letter calling attention thereto, served to extend the date of final assessment to this later date, is unnecessary to determine, and we leave that question to one side. This for the reason that the five year statute of limitation had been completed, whether the date was fixed in August or October. It is not inappropriate to direct attention to the Code of 1940, Title 51, section 357, which differs from the Act here involved making provision for notice and hearing and protest before final assessment.
Complainant contends that section 65, supra, seeks to impose a personal liability without personal service, and is violative of the Fourteenth Amendment of the Constitution of the United States under the authority of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. That case held that "a personal judgment rendered in a State Court, in an action upon a money demand against a non-resident of the State, without personal service of process upon him within the State or his appearance in the action upon service by publication is without any validity."
In the instant case complainant qualified under the laws of this State to do business within the State. In addition, it voluntarily filed a franchise tax return with the State Tax Commission for the purpose of having that department ascertain the amount due for the franchise tax for that year. It designated an agent with whom correspondence would be had relative to the tax. This action on the part of complainant, a foreign corporation, constituted an appearance sufficient upon which to predicate a personal judgment in this form of proceeding.
Section 65 of the Revenue Act, supra, provides that "such assessment shall be duly made and entered on the minutes of the commission." The minutes here referred to mean the written memoranda of the assessment of the franchise tax. No precise combination of words is necessary to the validity of a minute entry. The entering of the assessment for foreign corporation franchise tax on the return filed by the corporation for the purpose of having the tax assessed, and which is filed and preserved in the permanent files of the Tax Commission (now the Department of Revenue) is a compliance with that part of section 65, quoted above. Such is, and has been for many years, the administrative construction of the State Department of Revenue and its predecessor, the State Tax Commission. We see no good reason to alter or change that construction. See, Crist v. State, 21 Ala. 137; City of Talladega v. Jackson-Tinney Lumber Co., 209 Ala. 106, 95 So. 455.
It is insisted by complainant that the entry of the assessment, admittedly made on August 1, 1934, bears no date, and is therefore invalid in view of the requirements of section 65, supra. It is admitted that the following notice was mailed and received by complainant's agent, designated by complainant to receive such notice:
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...that meritorious claims will not be allowed to slumber until human testimony is lost or human memory fails. See Howell & Graves v. Gurry, 242 Ala. 122, 5 So.2d 105 (1941). The point is well made in the Comment referred to 'Limitation of actions statutes implement two basic policies of the l......
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... ... notice to the agent of a non-resident individual is likewise ... insufficient. Woodfin v. Curry, 228 Ala. 436, 153 ... The ... authorities generally on this subject refer to Pennoyer ... himself personally and generally to its jurisdiction. Howell ... & Graves v. Curry, Ala.Sup., 5 So.2d 105. Notice of ... hearings and other matters after ... ...
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...kept such ‘minutes.’ ‘Minutes' may be viewed as simply ‘the written memoranda of the assessment of the ... tax.’ Howell & Graves, Inc. v. Curry, 242 Ala. 122, 5 So.2d 105 (1941). The final assessment and the official notice thereof received by Taxpayer are permanent records of the departmen......