Berryhill v. Carter
| Decision Date | 04 November 1919 |
| Docket Number | 10778. |
| Parties | BERRYHILL v. CARTER, State Auditor. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The remedy of an income taxpayer aggrieved at the action of the state auditor in adjusting and correcting an income tax assessment is by appeal to the district court, and not by writ of certiorari to the Supreme Court.
Original suit by Joseph F. Berryhill, a minor, by H. A. McCauley guardian, against F. C. Carter, State Auditor of the State of Oklahoma, to review adjustments and corrections of income tax assessment. Suit dismissed.
Burt & Keenan, of Sapulpa, for plaintiff.
S. P Freeling, Atty. Gen., and C. W. King. Asst. Atty. Gen., for defendant.
Joseph C. Stone, Charles A. Moon, and Francis Stewart, all of Muskogee, amici curiae.
This is an original suit instituted in this court for a writ of certiorari to review the adjustments and corrections of the income tax assessment made to the state auditor as required by chapter 164 of the Session Laws of 1915.
The minor, Joseph F. Berryhill, was a Creek citizen, and by virtue of his citizenship had an allotment of land in the Creek Nation. In 1906 his guardian executed an oil and gas lease upon his lands, and under the developments had under this lease oil was discovered. The lands were fully developed during and prior to 1908. The lease. according to its terms expired upon the minor reaching his majority, which would be in July, 1919. The royalty to be paid under this lease was one-tenth of the oil. In February, 1918, the guardian entered into a new lease with the former lessee, he to receive one-eighth of the oil, and the lease was to continue until the minor reached his majority or as long thereafter as oil was produced in paying quantities. When this last lease was executed there was paid the guardian for and on behalf of his ward the sum of $130,000. The state auditor held that this was income and taxable under chapter 164, supra. The guardian contends that this sum is a part of the capital assets, and the sale of the lease was merely a conversion of capital from one form to another, and is not subject to an income tax.
The first question raised is whether the guardian has an adequate remedy at law. If so, this suit must fail. 6 Cyc. 742; Baker v. Newton, 22 Okl. 658, 98 P. 931.
Section 9 of chapter 164, supra, defines the duties of the state auditor to revise, adjust, and correct income tax returns and the rights and remedies of an aggrieved taxpayer, and is as follows:
"The state auditor is authorized to revise any returns that may be made to him, and he shall notify the party making such return of such revision on or before the first Monday in May following, and the auditor shall hear and determine all complaints arising from such revision which are made before the first Monday in June following thereafter, and he shall have the same power to correct and adjust such assessment of income as is now given by law to the county board of equalization in cases of assessments of property ad valorem and the remedy and proceedings before the said auditor shall be the same as those provided for reviewing assessments of property ad valorem by the county board of equalization."
The Legislature undoubtedly intended that the state auditor should exercise the same power as a county board of equalization in correcting and adjusting an income tax return, and that an aggrieved taxpayer had all rights...
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