Brittain v. Robertson

• Decision Date: 27 October 1919
• Docket Number: 20747
• Citation: 120 Miss. 684,83 So. 4
• Parties: BRITTIAN & HENRY v. ROBERTSON, STATE REVENUE AGENT
• Court: Mississippi Supreme Court

83 So. 4

120 Miss. 684

BRITTIAN & HENRY v. ROBERTSON, STATE REVENUE AGENT

No. 20747

Supreme Court of Mississippi

October 27, 1919

LICENSES. Penalty for failure to pay privilege taxes.

The fact that a party liable to the privilege tax imposed by Code 1906, section 3901 (Hemingway's Code, section 6630) failed to pay the same when due because he honestly believed that he was not liable therefor, will not relieve him from the penalty or damages imposed by this section for failure to pay the privilege taxes when due, since the statute contains no such exception either expressed or implied.

HON. O B. TAYLOR, Chancellor.

APPEAL from the chancery court of Copiah county, HON. O. B. TAYLOR Chancellor.

Suit by Brittian & Henry against Stokes V. Robertson, State Revenue Agent and others. From a decree dismissing the bill complainant appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

H. J. Wilson, for appellant.

"Courts will not enforce a penalty against the taxpayer where he makes a good defense against its imposition, or shows a legally sufficient excuse for the delinquency charged. It is held a sufficient ground for refusing to enforce the penalty that the officers did not give the taxpayer the notice or demand to which he was entitled; that the tax was illegal or illegally levied; that he tendered or offered to pay so much of the tax as was legal, resisting payment only of an illegal excess; that he made an honest mistake as to the amount, extent, or value of his taxable property; that he entertained a sincere and reasonable belief that the particular property was exempt, or was not taxable, particularly where such belief was found on the advice of counsel, or was the subject of judicial consideration or such as fairly to warrant a resort to the courts."

See 37 Cyc. 1544 and Notes; Trust Co. v. New Mexico, 183 U.S. 535. (2) Appellants entertained a sincere and reasonable belief that they were exempt from the payment of a tax as dealers in coffins or undertakers, and had every reasonable ground to submit this question to the courts for judicial consideration. See Section 3791 of the Code of 1906; Laws of Mississippi 1908, page 57; Laws of Mississippi of 1910, page ; Laws of Mississippi of 1916, page 80; Tax Collector v. Perkins, 73 So. 797; Long Furn. Co. v. Johnson, 113, Miss. 373.

Appellants came within the class of dealers in coffins and undertakers, which the legislature undertook to exempt from payment of the tax. Except for the unconstitutionality of the attempted exemption, appellants were exempt from the tax. Appellants were entitled to a strict construction of the statute in their favor, and had every reasonable ground to submit the question to the courts for judicial consideration. The proof in this case is overwhelming that appellants acted in the utmost good faith, and it would now be unconscionable to require them to pay penalty, especially one so severe as that claimed--a penalty for not doing the very thing they understood the legislature had relieved them from doing.

I respectfully submit, therefore, that under the law and the facts as shown by the testimony in this case, complaints are liable only for the privilege tax of one hundred dollars per annum for each of the years 1915, 1916 and 1917, and that the court erred in taxing them with the penalty for the non-payment of the tax, and the decree should, therefore, be reversed and remanded for further hearing.

M. S. McNeil, for appellee.

It is contended by the appellants under the testimony in this record that since they entertained a sincere belief that they were exempt from the payment of this tax as dealers in Coffins or undertakers, they could therefore decline to pay it and submit the question to the courts to be settled, and in no event would they be subject to the penalty prescribed by the statute, notwithstanding their default in the payment of the tax. 37 Cyc., 1544, and notes, is cited for authority on this proposition. The last paragraph of the section is not quoted in counsel's brief, which reads as follows: "Neither can the taxpayer relieve himself by belated payment of the tax after the penalty has accrued or suit has been brought to enforce it."

We take it that under the laws of the state of Mississippi if a person was in doubt with reference to the amount of tax due by him it would be his duty not to rely so much upon the advice of counsel but to pay the tax and then resort to section 6983 of the Hemingway Code. This section reads as follows: "Privilege taxes erroneously paid refunded.--If any person, firm or corporation has paid, or shall hereafter pay to the auditor of public accounts, or to any tax collector of the state, through error or otherwise, any privilege tax for which such person, firm or corporation was not liable, or if any person, firm or corporation has so paid for any privilege license, an amount exceeding the sum for which such person, firm or corporation are liable, upon proof of such erroneous payment or overpayment has been paid into the state treasury, he shall, with the advice and approval of the governor and attorney-general issue to such person, firm or corporation, his or their assigns, his warrant upon the state treasure for an amount to equal to such erroneous payment or overpayment, and the same shall be paid by the state treasurer from any funds appropriated for such purpose."

We respectfully refer the court to the case of Bennett v. Jones, 107 Miss. 880, 66 So. 277, which we insist settles the very principle involved in this case. The facts in that case, as stated in the opinion of the court were identical to the facts in this case.

"Their privilege tax license expired on April 1, 1914. They failed to procure a license during April, 1914, being the month in which such license was due. In May, 1914, they offered to pay applicant, the sheriff and tax collector, the amount of four hundred as privilege tax, and requested the issuance by him of the license. He refused to receive the amount and issue license and demanded eight hundred dollars, being double the amount of the tax, which he claimed that he was compelled to collect by the requirements of section...