Commissioner of Revenue v. Brown Realty Co.

• Decision Date: 25 January 1933
• Docket Number: 622.
• Citation: 167 S.E. 563,204 N.C. 123
• Parties: COMMISSIONER OF REVENUE v. BROWN REALTY CO.
• Court: North Carolina Supreme Court

167 S.E. 563

204 N.C. 123

COMMISSIONER OF REVENUE v. BROWN REALTY CO.

No. 622.

Supreme Court of North Carolina

January 25, 1933

Appeal from Superior Court, Buncombe County; Sink, Judge.

Proceeding by the State, on the relation of the Commissioner of Revenue against the Brown Realty Company. From the judgment defendant appeals.

Affirmed.

Absent fact findings and request therefor by appellant, reviewing court must assume that judgment is based on facts essential to support it.

John H Cathey and Isabel Cathey, both of Asheville, for appellant.

Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty Gen., for the State.

PER CURIAM.

The defendant filed a petition before the state department of revenue for a revision of its income tax assessment for the income year of 1925, and for a refund of taxes claimed to have been paid in excess of the amount actually due.

For the income tax year of 1925 the defendant made its income tax return to R. A. Doughton, commissioner of revenue, and upon this return the income tax was assessed and a part of it was paid. Some time afterwards the defendant was allowed a refund of taxes from the federal government based upon certain collections and changes, as will appear by reference to pages 21-25 of the case on appeal.

The defendant reported this refund to the state department of revenue as required by law, and the revenue commissioner made a re-examination of the tax returns, and refunded to the defendant the sum of $1,000. The defendant contends that this payment is not a bar to a further hearing of its claim for a refund, while the commissioner insists that the payment was intended to be final. The controversy seems to depend on the question whether section 502 of the Revenue Act (Pub. Laws 1925, c. 101) makes it mandatory upon the commissioner to adopt the correction made in the federal income tax report and assessment. The material part of section 502 is as follows: "The Commissioner shall thereupon proceed to determine, from such evidence as he may have brought to his attention or shall otherwise acquire, the correct net income of such taxpayer for the fiscal or calendar year, and if there shall be any additional tax due from such taxpayer the same shall be assessed and collected, and if there shall have been an overpayment of the tax the said Commissioner shall within thirty days after the final determination of the net income of such...