Chisholm v. Scott

• Decision Date: 18 September 1974
• Docket Number: No. 1301,1301
• Citation: 1974 NMCA 106,526 P.2d 1300,86 N.M. 707
• Parties: Joy S. CHISHOLM, Individually and Joy S. Chisholm, Rupert Larry Chisholm and Joy Ann Everhart, as the Heirs of the Estate of Rupert Chisholm, Deceased, Plaintiffs-Appellants, v. George B. SCOTT, Defendant and Third-Party Plaintiff-Appellee, v. James R. MILLER, LeRoy Rudolph and Herb Cox, Third-Party Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1300

526 P.2d 1300

86 N.M. 707

Joy S. CHISHOLM, Individually and Joy S. Chisholm, Rupert

Larry Chisholm and Joy Ann Everhart, as the Heirs of the Estate of Rupert Chisholm, Deceased, Plaintiffs-Appellants, v. George B. SCOTT, Defendant and Third-Party Plaintiff-Appellee, v. James R. MILLER, LeRoy Rudolph and Herb Cox, Third-Party

Defendants-Appellees.

No. 1301.

Court of Appeals of New Mexico.

Sept. 18, 1974.

[86 NM 707] Edward T. Curran, Menig, Sager & Curran, Albuquerque, for plaintiffs-appellants.

Russell Moore, Keleher & McLeod, Albuquerque, for defendant and third-party plaintiff-appellee.

T. K. Campbell, Las Cruces, for third-party defendants-appellees.

OPINION

LOPEZ, Judge.

Plaintiffs appeal from an order of the district court dismissing their amended complaint alleging that the defendants, certified public accountants, negligently prepared certain federal income tax returns, on the ground that the action was barred by the statute of limitations. We reverse.

The issue on appeal concerns the time from which the statute of limitations runs. The general statute § 23--1--1, N.M.S.A.1953 (Vol. 5) reads as follows:

'23--1--1. Limitation on time of bringing actions.--The following suits or actions may be brought within the time hereinafter limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially provided.'

All parties agree that the applicable statute in this case is § 23--1--4, N.M.S.A.1953 (Vol. 5), and that the period of limitation is four years:

'23--1--4. Accounts--Unwritten contracts--Injuries to property--Conversion--Fraud--Unspecified actions--Four-year limitation.--Those founded upon accounts and unwritten contracts; those brought for injuries to property or for the conversion of personal property or for relief upon the ground of fraud, and all other actions not herein otherwise provided for and specified within four (4) years.'

The facts disclose that Rupert Chisholm died in 1963 leaving his wife, Joy S., a daughter Joy Ann, and a son Rupert Larry. The deceased had been a partner in the Pioneer Construction Company. Sometime after his death, but in the same year, Joy S. Chisholm retained the services of the defendant Scott to prepare the federal income tax return for the partnership, her individual return and the return for the deceased's estate. The partnership return was filed on April 5, 1964.

The partnership owned a number of lots, a large number of which were sold during 1963, 1964, and 1965. The Internal Revenue Code, Title 26 U.S.C.A. §§ 743(b) and 754 (1964), provided that in case of the death of a partner, the partnership could elect to take a stepped-up value basis on the partnership property.

The code and regulations require that, to be valid, those elections be made in the partnership tax year in which the death of a partner occurs. The return prepared by defendants did not include this election. The income earned from the sale of lots was then computed on the stepped-up basis rather than on the original cost to the partnership. This resulted in an underpayment and the Internal Revenue Service sent notice of a deficiency assessment to plaintiffs on February 17, 1967.

Plaintiffs contend the statute of limitations commences to run at the time that the Internal Revenue Service gives notice of an assessment of tax deficiency, in this case February 17, 1967. They argue that defendants' failure to make the indicated tax elections did not give rise to an action for damages until injury was sustained as a result of the alleged negligence.

Defendants claim that the cause of action arose and the statute started to run when the 1963 partnership return was filed on April 5, 1964. They further contend that '(t)he present case involves the alleged malpractice or professional negligence of an accountant and is directly analogous to medical malpractice suits.' Defendants argue that, therefore, as in medical malpractice cases, the statute of limitations begins to run from the date of the alleged negligent act or omission, citing Roybal v. White, 72 N.M. 285, 383 P.2d 250 (1963).

We do not agree that the professional negligence suit against an accountant is 'directly analogous' to a professional negligence suit against a doctor. There are compelling reasons why they should be treated differently:

(1) Roybal was a personal injury case, alleging medical malpractice, and controlled by statute of limitations § 23--1--8, N.M.S.A.1953 (Vol. 5). In Spurlin v. Paul Brown Agency, Inc., 80 N.M. 306, 454 P.2d 963 (1969), our Supreme Court has held that the period of limitation in § 23-- 1--4, supra, begins to run when the cause of action accrues; and there is no cause of action for negligence until there has been a resulting injury to the plaintiff. The injury to plaintiffs in this case was the assessment made by the Internal Revenue Service; and a taxpayer does not owe a tax deficiency until the IRS renders its assessment in written notice to the taxpayer. 26 U.S.C. § 6155(a) (1964).

(2) In medical malpractice cases, the evidence is generally gathered after the fact of injury or omission, often with difficulty. In a case of malpractice by a certified public accountant, the evidence is easily documented from the date of the negligent act or omission in the form of accounting records. The maximum possible time-lapse from the date of a negligent act or omission until the date of filing suit in such a case would be seven years: three years from the filing of the erroneous return until notification of the taxpayer by the IRS, 26 U.S.C. § 6501 (1964), and four years from that date, the time of injury, until suit might be filed, § 23--1--4, supra. During such a period, accountant records are readily available, as the transcript in this case indicates. In a medical malpractice situation, evidence can be lost and memories fade; but in accountant malpractice the evidence usually consists of documents which speak for themselves even when memories fade.

(3) In medical malpractice cases the injury occurs, and is often easily ascertained, at the time of the negligent act or omission. See Annot., 80 A.L.R.2d 368 (1961). In a tax deficiency situation, the injury occurs only when the party aggrieved receives notice by mail from the tax commissioner. See Annot., 26 A.L.R.3d 1438 (1969). See also, Annot., 18 A.L.R.3d 978 (1968). A person needs special training to know whether his tax return has been erroneously prepared. No special training is required to feel pain. In the relationship of accountant and client, the trust and confidence that the client places in the professional person places him in a vulnerable position should that trust and confidence be misplaced. It is the policy of the law to encourage that trust and confidence; likewise it is the duty of the law to protect the client from the negligent acts of the professional person.

California recognizes a distinction between the application of the statute to medical and other types of malpractice. In 1970 the California legislature placed a maximum limitation upon the bringing of a medical malpractice case of four years from the date of injury or one year after discovery, whichever occurs first. West's Ann.C.C.P. § 340.5. Case law in California, however, holds that the statute of limitations begins to run as to malpractice by a certified public accountant only after the date of injury, with no maximum placed upon the time of injury. Moonie v. Lynch, 256 Cal.App.2d 361, 64 Cal.Rptr. 55 (1967); cited with approval in Neel v. Magana et al., 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421 (1971). For a general discussion of statutes of limitations as applied in various malpractice situations, see 28 Md.L.Rev. 47 (1968).

Within the limiting factors of this case, therefore, the statute may not be deemed to have run until four years after notice had been given by the IRS. The...