Home Sav. of America, F.A. v. State, No. WD44209

Decision Date06 August 1991
Docket NumberNo. WD44209
Citation817 S.W.2d 518
PartiesHOME SAVINGS OF AMERICA, F.A., Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Warren E. Slagle, Slagle, Bernard & Gorman, Kansas City, for appellant.

William L. Webster, Atty. Gen., Wood Miller, Sp. Asst. Atty. Gen., Mo. Dept. of Revenue, Jefferson City, for respondent.

Before TURNAGE, P.J., and KENNEDY and BRECKENRIDGE, JJ.

TURNAGE, Presiding Judge.

Home Savings of America brought suit against the State of Missouri to recover taxes paid pursuant to § 148.480, RSMo 1978, after that section was declared unconstitutional. The suit was brought on a theory of inverse condemnation and sought judgment for $1,211,454.00 together with interest. The case was tried on a stipulation of facts and the court entered judgment in favor of the State. Home Savings contends the judgment is erroneous because there was a taking of its money under Art. I, § 26 of the Missouri Constitution. Affirmed.

Home Savings is the successor by merger of Hamiltonian Federal Savings and Loan Association and of Security Federal Savings and Loan Association. From 1975 to 1981 Hamiltonian paid an intangible tax to the State under § 148.480 and Security paid such tax from 1975 to 1979. It was alleged the total paid by those institutions was $1,211,454.00.

A number of savings and loan associations challenged the constitutionality of § 148.480 and in Jefferson Sav. and Loan Assoc. v. Goldberg, 626 S.W.2d 640 (Mo. banc 1982), the intangible tax imposed by that section was declared to be unconstitutional. Following that holding a number of savings and loan associations attempted to obtain a refund of the taxes which had been paid pursuant to the unconstitutional statute. In Community Fed. Sav. & Loan v. Director of Revenue, 752 S.W.2d 794, 798[6-8] (Mo. banc 1988), the court held that institutions which had paid taxes under that statute could obtain a refund pursuant to § 136.035, RSMo 1986. The court held that the language of § 136.035.1, which required the director of revenue to "refund any overpayment or erroneous payment of any tax which the state is authorized to collect" authorized a refund of the tax collected under § 148.480 after that statute had been declared unconstitutional. The court stated that all institutions "that have followed the proper procedures for applying for a refund, are entitled to a refund of that overpayment, erroneous or illegal payment." Id.

There is nothing in the record to indicate that Home Savings pursued the remedy given by § 136.035. Section 136.035.3, requires that a claim for a refund must be filed within two years from the date of payment.

The petition alleged that a taking of its property occurred under the power of eminent domain without the payment of just compensation as required by Art. I, § 26 when the State refused to refund the amount paid.

In Page v. Metropolitan St. Louis Sewer District, 377 S.W.2d 348, 354[11-13] (Mo.1964), the court held that if an injury is alleged which constitutes damage within the meaning of Art. I, § 26, that the party injured may proceed under a procedure referred to as condemnation in reverse or inverse condemnation. The court stated, however, that the predicate of such an action is an injury within the constitutional prohibition against the taking or damaging of private property for public use.

In City of Marshfield v. Brown, 337 Mo. 1136, 88 S.W.2d 339, 340[1-3] (1935), the court drew a distinction between the taking or injury of private property prohibited by the constitution and the taxing of citizens which is referable to the taxing power of the state. The court held that the taxing of a citizen is not a taking or damage of private property within the meaning of the constitutional prohibition.

Home Savings brought this suit on the theory that the State had taken its property without the payment of just compensation and for that reason it is entitled to judgment under Art. I, § 26. However, Home Savings's petition alleged that the money which it seeks to recover was paid as taxes. Although § 148.480, which levied the intangible tax was declared unconstitutional, the money paid pursuant to that section was required to be paid to the State under the taxing power of the State. Under City of Marshfield, the payment of taxes is not a...

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1 cases
  • Joachim Sav. and Loan Ass'n v. State, WD44220
    • United States
    • Missouri Court of Appeals
    • August 6, 1991
    ...This case presents the same issues based upon the same facts as were presented in Home Savings of America, F.A., v. State of Missouri, 817 S.W.2d 518 (Mo.App.1991), decided concurrently herewith. For the reasons fully explained in Home Savings the judgment is All concur. ...

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