Fulton County Federal Savings & Loan Ass'n v. Simmons
| Decision Date | 13 April 1954 |
| Docket Number | No. 18552,18552 |
| Citation | 210 Ga. 621,82 S.E.2d 16 |
| Parties | FULTON COUNTY FEDERAL SAVINGS & LOAN ASS'N v. SIMMONS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The proviso of Part III, § 1, of the act approved December 22, 1953, Ga.L.Nov.-Dec.Sess.1953, pp. 379-390, that Federal savings and loan associations 'shall have the same immunities and exemptions as national banks,' was applied by the General Assembly to Parts II and III of the act, which provide a new method of ad valorem taxation applicable to all savings and loan associations. The General Assembly by the express terms of the act gave the proviso no further force and effect.
Fulton County Federal Savings and Loan Association filed a petition against J. W. Simmons, in his official capacity as Clerk of the Superior Court of Fulton County, and in substance alleged: The plaintiff tendered to the defendant as clerk a certain described loan deed for the purpose of having it filed and recorded, and at the same time tendered the fee for recording the deed. The indebtedness secured by the deed is a long term note as defined by the act of 1953, Ga.L.Nov.-Dec., 1953, pp. 379, 383. The defendant refused to accept the loan deed for recording and contended, and still contends, that a recording tax amounting to $13.50 was due and should be paid. The plaintiff has neither paid nor tendered to the defendant the sum claimed to be due. The defendant is wrongfully refusing to record the loan deed. The tax claimed is not due under the provisions of Part III, § 1, of the act approved December 22, 1953. Under the provision aforesaid, Federal savings and loan associations have the same exemption from taxation as national banks, and Congress has not consented for national banks to be taxed in the manner provided by the act.
The plaintiff prayed for a mandamus nisi, that on the hearing the mandamus be made absolute, for process, and other relief.
The defendant's general demurrers to the petition were sustained, and the exception is to that judgment.
John H. Boman, Jr., Crenshaw, Hansell, Ware & Brandon, Atlanta, for plaintiff in error.
Harold Sheats, Atlanta, for defendant in error.
Alex W. Smith, Atlanta, for parties at interest not parties to record.
In this case the 'Intangible Property Tax Act' approved December 22, 1953, Ga.L.Nov.-Dec.Sess.1953, pp. 379-390, was construed by the able trial judge against the plaintiff's contentions that under the terms of the act it is exempted from the payment of the tax on 'long term notes secured by real estate.'
The Intangible Property Tax Act of 1953 is divided into three parts. In Part I, §§ 1 and 2, a tax is levied on certain types of intangibles as classified by the act approved December 27, 1937, Ga.L.1937-38, pp. 156-170, Code, Ann.Supp., §§ 92-113 to 92-160. Beginning with Part I, § 3, 'long term notes secured by real estate' are defined, and a tax is levied of $1.50 on each $500 or fraction thereof of the face amount of the note secured by deed to secure debt, mortgage, or bond for title. It is made the duty of the clerk of the superior court to collect the sums provided by the act prior to the recording of the deed to secure debt, mortgage, bond for title, or other form of security, and remit the amounts collected to the State Revenue Commissioner. It is provided that a failure to pay the tax levied by the act shall constitute a bar to the collection of the indebtedness, or the exercise of any power of sale contained in the instrument by suit or foreclosure. A method is provided for the removal of the bar to foreclosure by the payment of certain interest and penalties.
Part II, § 1, provides that, beginning with the calendar year 1954, and each year thereafter, every building and loan association, and every Federal savings and loan association, having its office or place of business in this State 'shall return its net worth at full market value to the tax receiver of the county in which the principal office of such savings and loan association is situated,' and net worth is defined 'as all surplus, undivided profit and reserves exclusive of the minimum statutory Federal insurance reserve'. Part II, § 2, provides that such savings and loan associations shall make a like return for taxation to the municipal corporation in which its principal office or place of business is located. Under Part II, § 3, the return to be made is to begin with the year 1954, and to be made each year thereafter, and in Part II, § 4, it is provided that the net worth of every savings and loan association described in Part II, § 1, shall be subject to ad valorem taxation by the State, county, and municipality in which its principal office is located in the same manner as other property is subject to taxation, 'and such property shall no longer be exempt from ad valorem taxation.'
In Part III, §§ 1 and 2, it is provided:
In this case the plaintiff relies on the language in Part III, § 1, as follows: 'All Federal savings and loan associations having their principal offices or places of business in this State, shall have the same immunities and exemptions as national banks and banking associations created and incorporated under the laws of the United States and located in this State.'
The rules of construction applicable in the present case are fixed and certain. If an act imposing taxes is of doubtful or uncertain meaning, it is to be strictly construed against the government. Mayor, etc., of Savannah v. Hartridge, 8 Ga. 23; Case-Fowler Lumber Co. v. Winslett, 168 Ga. 808, 149 S.E. 211; Mystyle Hosiery Shops v. Harrison, 171 Ga. 430, 155 S.E. 765; Davison v. F. W. Woolworth Co., 186 Ga. 663, 198 S.E. 738, 118 A.L.R. 1363; Mayor, etc., of Savannah v. Savannah Electric & Power Co., 205 Ga. 429, 54 S.E.2d 260. Exemptions from taxation are to be strictly construed against the taxpayer, and unless the language clearly grants the exemption, it is the duty of this court to rule in favor of the State. Thompson v. Atlantic Coast Line R. Co., 200 Ga. 856, 38 S.E.2d 774; Davis v. City of Atlanta, 206 Ga. 652, 655, 58 S.E.2d 140. The final test is that, regardless of how unusual the language of the statute may be, the legislative intent manifested by it must be ascertained and enforced as the law. Davison v. F. W. Woolworth Co., supra 186 Ga. at page 665, 198 S.E. at page 740.
The General Assembly in enacting this tax statute divided it into three parts,...
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