City of Austin v. Davis
| Decision Date | 22 April 1981 |
| Docket Number | No. 13271,13271 |
| Parties | CITY OF AUSTIN, Appellant, v. Tom H. DAVIS, Appellee. |
| Court | Texas Court of Appeals |
Jerry L. Harris, City Atty., Ernest A. Simon, Asst. City Atty., Austin, for appellant.
James A. Brady, Austin, for appellee.
The City of Austin, appellant, sued in the 53rd Judicial District Court of Travis County to collect delinquent ad valorem taxes assessed by the City and the Austin Independent School District against an airplane owned by appellee, Tom H. Davis. The trial court, sitting without a jury, rendered judgment that appellant take nothing. The judgment was based upon findings of fact and conclusions of law to the effect that: (a) on January 1, 1975, the airplane had acquired a tax situs located outside both taxing authorities and separate from appellee's personal domicile within the geographical limits of the taxing authorities; (b) the two taxing authorities had adopted for 1975 an illegal system of taxation because they had arbitrarily omitted from the tax rolls several kinds of taxable property, resulting in an excessive tax rate and substantial injury to appellee; and (c) the assessed value of the airplane was grossly excessive. We reverse the judgment of the trial court and remand the cause.
The facts pertinent to the tax situs of the airplane are essentially undisputed. Davis housed his airplane at Austin Municipal Airport which is located within the Austin city limits and the Austin Independent School District. In 1974, for the first time, Davis was required to pay ad valorem taxes assessed by the two taxing authorities against the airplane. He then determined to move it permanently to Tim's Airpark which is located within the same county but outside the boundaries of the two taxing authorities. On December 30, 1974, he removed the airplane from Austin Municipal Airport to Addison Airport near Dallas for scheduled maintenance. The airplane remained at Addison until January 9, 1975, when it was taken to Tim's. There it was housed until February 1977, when it was sold by Davis.
As a general rule personal property in Texas is taxable at the domicile of its owner. Great Southern Life Ins. Co. v. City of Austin, 112 Tex. 1, 243 S.W. 778 (1922). Personal property can however, acquire a tax situs apart from the domicile of the owner if kept in another place with sufficient permanency that it may be fairly regarded as being a part of the general mass of property within that jurisdiction. State v. Crown Central Petroleum Corp., 242 S.W.2d 457 (Tex.Civ.App. San Antonio 1951, writ ref'd). It is not necessary that the property be situated in the other location with absolute permanency, or that it be situated there with no intention on the part of the owner to remove it. It is sufficient if the property is situated in the separate location with a degree of permanency sufficient to "distinguish it from property which is in the (same location) on a purely temporary or transitory basis." Greyhound Lines, Inc. v. Board of Equalization, 419 S.W.2d 345 (Tex.1967).
When a taxing authority introduces the tax rolls into evidence, together with evidence that the tax has not been paid, it makes a prima facie case for delinquency. Alamo Barge Lines, Inc. v. City of Houston, 453 S.W.2d 132 (Tex.1970). The burden then shifts to the taxpayer to prove that the airplane had acquired a tax situs of its own. Appellee contends that his subjective intention to relocate the airplane permanently at Tim's Airpark, coupled with its actual removal from the two taxing authorities before January 1, 1975, should control the determination of whether the airplane had acquired a tax situs of its own.
The evidence shows that Davis' airplane was not located at Tim's Airpark on January 1, 1975, nor had it been located there before that date. Mr. Davis testified that he informed the people at Austin Municipal Airport that he would not house his airplane there after December 1974. He testified further that in the fall of 1974, he went to Tim's Airpark to see the hangar facilities and "told (the people there) that as of January 1st I was going to move my airplane out there." A rental receipt from Tim's dated January 26, 1975, for Davis' January and February rental was received into evidence.
The evidence will not support the proposition that the airplane had acquired an independent tax situs on January 1, 1975, the only day of the year which the Legislature has set for fixing the question of tax liability and situs. See Childress County v. State, 127 Tex. 343, 92 S.W.2d 1011 (1936); Tex.Rev.Civ.Stat.Ann. art. 7151 (repealed effective January, 1982). There is no probative evidence in the record showing that on January 1, 1975, the airplane in question was in any way distinguishable from other property located at Tim's on a purely temporary or transitory basis; no other location is claimed as a tax situs of the airplane. There is particularly no evidence that the airplane was in "continual use" at Tim's before January 1, 1975. Greyhound Lines, Inc. v. Board of Equalization, supra. The evidence shows in fact, that the airplane was not at Tim's on January 1, 1975, and had never before been at that location.
Davis' subjective intent in the matter is not sufficient to create a tax situs in the airplane independent of his personal domicile. See Crown Central, supra. The trial court erred, therefore, in its conclusion that the airplane had acquired, on January 1, 1975, a tax situs, outside the two taxing authorities.
Appellee contends that because bank deposits and other property legally subject to ad valorem taxes were omitted from the tax roll by the two taxing authorities, he was taxed at an excessive rate under an illegal tax plan. To support his claim, appellee introduced into evidence several newspaper advertisements by local banks showing their financial condition on December 31, 1974, including the total dollar amount of demand and time deposits held for non-governmental depositors. These newspaper advertisements were allowed into evidence, over appellant's...
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