Hamm v. Berrey, 14611

• Decision Date: 06 September 1967
• Docket Number: No. 14611,14611
• Citation: 419 S.W.2d 401
• Parties: Phillip J. HAMM, as Commissioner of Revenue of the State of Alabama, Appellant, v. Mary W. BERREY, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 401

419 S.W.2d 401

Phillip J. HAMM, as Commissioner of Revenue of the State of Alabama, Appellant, v. Mary W. BERREY, Appellee.

No. 14611.

Court of Civil Appeals of Texas San Antonio.

Sept. 6, 1967.

Rehearing Denied Oct. 11, 1967.

John M. Killiam, Lang, Byrd, Cross, Ladon & Oppenheimer, San Antonio, for appellant.

Bobbitt, Brite, Bobbitt & Allen, San Antonio, for appellee.

KLINGEMAN, Justice.

Suit by the Commissioner of Revenue of the State of Alabama, appellant, to enforce an assessment for non-resident income taxes made against appellee. Appellant appeals from an order of the trial court sustaining appellee's plea to the jurisdiction.

The material findings of fact made by the court are summarized as follows: (a) Appellee has been a continuous resident of the State of Texas since 1922, and was last physically present in Alabama in 1941 . (b) Appellee sold certain interests in real estate owned by her in Alabama in the years 1952, 1953 and 1954. (c) Appellee failed to file an Alabama non-resident income tax return for the years 1952, 1953 and 1954. (d) Appellee made no appearance before the Department of Revenue of the State of Alabama, or in any court within that State in regard to such non-resident income tax claim. (e) No judgment has ever been obtained against appellee in any court within the State of Alabama.

The following conclusions of law were filed by the court: (1) The assessment rendered against defendant by the Revenue Department of the State of Alabama is not a judgment and the Courts of the State of Texas are not required to extend full faith and credit to such assessment. (2) That comity does not require that the Courts of the State of Texas enforce the revenue laws of the State of Alabama. (3) That the revenue laws of the State of Alabama in regard to the collection of non-resident income taxes are penal in nature, and will not be enforced in the Courts of this State. (4) That under the authority of State of California v. Copus, 158 Tex. 196, 309 S.W .2d 227, 67 A.L.R.2d 758, this action cannot be maintained by Plaintiff against Defendant in the Courts of the State of Texas.

During the years 1952, 1953 and 1954, appellee, then a resident of the State of Texas, sold certain interests in lands owned by her in Alabama. In December of 1961, appellee received a letter from the Department of Revenue of the State of Alabama to the effect that, according to their records, she had not filed Alabama non-resident income tax returns for the years 1952, 1953 and 1954, and that if no such returns had been filed to file them immediately. Appellee made no response to that letter. On January 31, 1962, another letter was sent to her stating, since she had not cooperated in filing these returns that her income tax liability had been compiled for said years from best information available, and a statement of such liability was attached. Under date of February 18, 1963, final assessment of income taxes for the three calendar years was made and notice of such final assessment was allegedly mailed to appellee by registered mail on or about February 21, 1963, which notice provided that an appeal could be taken from said assessment within thirty days from the date of such final assessment. Appellee made no formal protest or appeal to the Commissioner of Revenue or to any court within the State of Alabama, and made no payments to the Commissioner of Revenue with regard to such non-resident income taxes. Appellee at no time made any appearance before the State Department of Revenue or any court of Alabama with respect to such non-resident income taxes.

Appellant's principal contentions on appeal are: (1) The assessment of income tax made by the Department of Revenue, with no appeal therefrom, constitutes a judgment and was entitled to full faith and credit under Article IV, Section 1, of the United States Constitution. (2) The trial court erred in concluding that principles of comity do not require the courts of the State of Texas to enforce the revenue laws of the State of Alabama. (3) The trial court erred in concluding that the revenue laws of the State of Alabama in regard to the collection of non-resident income taxes are penal in nature and will not be enforced by the courts of this State .

Appellant contends that under Alabama laws a final assessment entered by the State Department of Revenue and not appealed from by a taxpayer is as conclusive as a judgment of an ordinary court, and no attack can be made upon it except as applies to an ordinary court judgment. Appellant, in his brief, cites a number of Alabama cases in support of this contention, and also refers to and sets forth various sections and provisions of the Alabama laws applicable to the assessment of income taxes, including Sections 140, 373, 407 and 770, Title 51, Code of Alabama, 1940, and also Section 139 of the Alabama Constitution.

We agree with appellant's contention that a State must, under Article 4, Section 1, of the Constitution of the United States, give the final judgment of a sister State the same force and effect as it is entitled to in the State in which it is rendered. Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82; Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216 (1942). However, there was no request by appellant for the trial judge to take judicial notice of the public statutes and court decisions of the State of Alabama as provided by Rule 184a, Texas Rules of Civil Procedure, ¹ nor did he plead or prove the applicable provisions of the Alabama law upon which he relies. Our Texas Courts may not take judicial notice of the laws of another State in the absence of a proper request to do so. Harris v. Harris, Tex.Civ.App., 403 S.W.2d 445, writ ref'd n.r.e. Since appellant has neither pled nor proved what the laws of Alabama are, nor availed himself of Rule 184a, T.R.C.P., it will be presumed that the laws of Alabama are the same in respect to the facts presented as those of Texas. Harris v. Harris, supra; Lodge v. Lodge, Tex.Civ.App., 368 S.W.2d 40, no writ; Kansas City Title Ins. Co. v. Butler, Tex.Civ.App., 265 S.W.2d 154, writ ref'd n.r.e.; Vickers v. Faubion, Tex.Civ.App., 224 S.W. 803, no writ; Milner v. Schaefer, Tex.Civ.App., 211 S.W.2d 600, writ ref'd.

Black's Law Dictionary, Third Edition, defines a judgment as 'The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination.'

Appellant relies heavily on Commonwealth of Massachusetts v. Davis, supra, which was a suit by the State of Massachusetts in a Texas court against Davis on an income tax judgment rendered against Davis in a court in the State of Massachusetts. Davis contended that the Massachusetts income tax law was unconstitutional and our Supreme Court, in refusing to pass on the question of the constitutionality of such statute, held that Texas was required to give full faith and credit to the Massachusetts Judgment if the court which rendered it had jurisdiction of the parties and of the subject matter of the suit. Appellant also relies on Gard v. Gard, 244 S.W.2d 884, writ dism'd, and Garman v. Reynolds, 284 S.W.2d 262, writ ref'd, but in both of those cases judgment had been rendered in other states, by their courts, and requests had been made under Rule 184a to take judicial notice of the foreign law. There is nothing in this record to establish that the assessment made by the Department of Revenue of the State of Alabama was a judgment which will be entitled to full faith and credit under Article IV, Section 1, of the United States Constitution. The trial court correctly concluded that the suit brought by appellant was based upon an assessment made by the State Department of Revenue of Alabama and not based on a judgment rendered by a court of Alabama.

Appellant's points of error that the trial court erred in concluding that principles of comity do not require that the courts of the State of Texas...