Commonwealth v. R.G. Dun & Co.

• Decision Date: 12 June 1907
• Citation: 126 Ky. 108,102 S.W. 859
• Parties: COMMONWEALTH v. R. G. DUN & CO.
• Court: Kentucky Court of Appeals

102 S.W. 859

126 Ky. 108

COMMONWEALTH v. R. G. DUN & CO.

Court of Appeals of Kentucky.

June 12, 1907

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

"To be officially reported."

Action by the commonwealth, by George H. Alexander, revenue agent against R. G. Dun & Co. Judgment for defendant. Plaintiff appeals. Reversed and remanded.

M. J Holt, for appellant.

Gregory & McHenry, for appellee.

NUNN J.

This action was brought in the Jefferson circuit court against R G. Dunn & Co., in the name of the commonwealth of Kentucky, by Geo. H. Alexander, revenue agent for the state at large. There is no controversy as to the facts; the only proof in the case being that of Mr. J. J. Sanders, the manager for appellee at Louisville, Ky. His testimony shows that the business of R. G. Dun & Co. is conducted by four trustees, under the will of R. G. Dun, for the sole benefit of his estate, and that all the trustees and the chief office of the company are located in the state of New York. It is also shown, and is conceded, that appellee had established an agency and office in Louisville, Ky. many years ago, and had transacted a portion of its business there ever since, and that on September 15, 1900, had deposited in banks in that city to its credit $4,240.50; on September 15, 1901, $2,696.14; on September 15, 1902, $4,760.55; on September 15, 1903, $949.65; and on September 1, 1904, $161.14. There was due to the Louisville office from subscribers (or persons transacting business with appellee) on each of the above assessing dates about $5,000. The income from the Louisville office for each of the years named was about $40,000, which was deposited in the banks, on which the manager drew checks for all current expenses, and at the end of each month, if there was any substantial balance on deposit, he would remit to the New York office. It is conceded that the money deposited in the banks, and the amounts due at the assessing dates referred to, were omitted from assessment and taxation; but appellee claims that the situs of these deposits and the debts due appellee on the above-named assessing days, for the purpose of taxation, must be deemed and considered to exist in New York, the home of Dun's heirs, devisees, and trustees managing the estate. The lower court sustained this contention, and dismissed appellant's petition.

There can be no doubt but that this money in bank and debts due appellee, referred to, were personal estate. Section 4020 of the Kentucky Statutes of 1903 declares: "All real and personal property situated within this state, * * * shall be subject to taxation unless the same be exempt from taxation by the Constitution. * * *" This section of the statute literally includes all property, whether owned by residents or nonresidents. This court, however, in construing this statute, has determined that it does not apply to the property of nonresidents when in this state temporarily; that in such a case the situs...