Canary v. Oklahoma Tax Commission, 37080

• Decision Date: 20 March 1956
• Docket Number: No. 37080,37080
• Citation: 295 P.2d 281
• Parties: Simeon C. CANARY and Josephine N. Canary, Plaintiffs in Error, v. OKLAHOMA TAX COMMISSION, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 281

295 P.2d 281

1956 OK 92

Simeon C. CANARY and Josephine N. Canary, Plaintiffs in Error, v. OKLAHOMA TAX COMMISSION, Defendant in Error.

No. 37080.

Supreme Court of Oklahoma.

March 20, 1956.

Syllabus by the Court

1. An income tax is a tax on income and not a property tax on the source of the income.

2. Where Oklahoma Tax Commission assessed and collected income tax on income of an unrestricted Cherokee Indian citizen for the years of 1949 and 1950 from oil and gas production on homestead allotment exempt from taxation, and such taxes were paid under protest, it was not error to refuse a refund thereof since such tax was on income and did not constitute a property tax on the tax-exempt homestead.

Appeal from the District Court of Oklahoma County; W. A. Carlile, Judge.

Action for refund of income taxes paid the Oklahoma Tax Commission over protest of taxpayer. From judgment for defendant, plaintiffs appeal. Affirmed.

Jay W. Whitney, Rosenstein, Fist & Mesirow, Tulsa, Mastin Geschwind, Oklahoma City, for plaintiffs in error.

R. F. Barry, W. F. Speakman, E. J. Armstrong, Oklahoma City, for defendant in error.

JOHNSON, Chief Justice.

Parties will be referred to as they appeared in the trial court, except that since Mrs. Canary has no interest in the income in controversy, other than that she, with her husband, made a joint income tax return, we shall hereinafter disregard her as an appellant.

The facts germane to the issues are that Simeon C. Canary, as a 1/64th enrolled Cherokee Indian (citizen), received a tax exempt homestead allotment from which he received income for oil and gas sold therefrom for the years 1949 and 1950, upon which the Oklahoma Tax Commission assessed income tax. The tax was paid under protest pursuant to 68 O.S.1951 § 1475. Thereafter action for recovery of the tax so paid was filed in the District Court of Oklahoma County, Oklahoma, and there the claim for refund was again denied. From the court's order overruling motion for new trial, plaintiffs appeal.

The material contention (for reversal) is that the trial court erred in holding that the income in controversy was not exempt from Oklahoma income tax.

Plaintiff asserts that such contention is based upon, and depends upon, the interpretation of Sec. 13 of the Act of Congress of July 1, 1902, Public No. 241, which provides for the allotment of the lands of the Cherokee Nation, for the disposition of town sites therein, and for other purposes. 32 Stat. 716, 717.

Section 13 provides:

'Each member of said tribe shall, at the time of the selection of his allotment, designate as a homestead out of said allotment land equal in value to forty acres of the average allotable lands of the Cherokee Nation, as nearly as may be, which shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of the certificate of allotment. Separate certificate shall issue for said homestead. During the time said homestead is held by the allottee the same shall be nontaxable and shall not be liable for any debt contracted by the owner thereof while so held by him.'

And plaintiff argues that under this Law, Sec. 13, the income tax imposed upon the income derived from the sale of oil and gas severed from the tax exempt homestead allotment constituted a tax upon property which was exempt from taxation under federal law, and that under Article 10, Sec. 6 of the Oklahoma Constitution the property was exempt from state taxation because Sec. 6 provides that such property as may be exempt from taxation by reason of federal law shall be exempt from taxation by the state during the force and effect of such federal law.

In support of this contention, plaintiff cites and relies upon the following cases: Carpenter v. Shaw, 134 Okl. 29, 272 P. 393; Heiner v. Colonial Trust Co., 275 U.S. 232, 48 S.Ct. 65, 72 L.Ed. 256; Carpenter v. Shaw, 280 U.S. 363, 50 S.Ct. 121, 74 L.Ed. 478; Choate v. Trapp, 224 U.S. 675, 32 S.Ct. 565, 56 L.Ed. 945; Jones v. Meehan, 175 U.S. 1, 11, 20 S.Ct. 1, 44 L.Ed. 49, 54; Leahy v. State Treasurer of Oklahoma, 297 U.S. 420, 56 S.Ct. 507, 80 L.Ed. 771; and Worcester v. State of Georgia, 6 Pet. 515, 582, 8 L.Ed. 483.

It is conceded that plaintiff, Simeon C. Canary, was not a restricted Indian and was free to alienate or incumber his tax exempt homestead, and that when he took the income in controversy he was free to spend it as he pleased.

Though plaintiff cites several cases, yet he principally relies on the case of Carpenter v. Shaw, supra, which is the only case we deem necessary to discuss, as none of the cited cases sustain his position, nor, with the exception of the case of Leahy v. State Treasurer of Oklahoma, 173 Okl. 614, 49 P.2d 570, which case was affirmed by the United States Supreme Court, 297 U.S. 420, 56 S.Ct. 507, 80 L.Ed. 771...