Indiana Dept. of State Revenue, Inheritance Tax Division v. Griffith's Estate

• Citation: 156 N.E.2d 395,129 Ind.App. 278
• Decision Date: 27 February 1959
• Docket Number: No. 1,No. 19082,19082,1
• Parties: INDIANA DEPARTMENT OF STATE REVENUE, INHERITANCE TAX DIVISION, State of Indiana, Appellant, v. ESTATE OF Ida B. GRIFFITH, Deceased, Citizens and Southern National Bank, Atlanta, Georgia, Executor, William R. Fogarty, Ancillary Administrator, With Will Annexed, Appellees
• Court: Court of Appeals of Indiana

Page 395

156 N.E.2d 395

129 Ind.App. 278

INDIANA DEPARTMENT OF STATE REVENUE, INHERITANCE TAX

DIVISION, State of Indiana, Appellant, v. ESTATE OF Ida B. GRIFFITH, Deceased, Citizens and Southern

National Bank, Atlanta, Georgia, Executor, William

R. Fogarty, Ancillary Administrator,

With Will Annexed, Appellees.

No. 19082.

Appellate Court of Indiana, Division No. 1.

Feb. 27, 1959.

Edwin K. Steers, Atty. Gen., J. Van Brown, Charles D. Rodgers, Deputy Attys. Gen., for appellant.

Samuel A. Fuller, Robert R. Girk, Indianapolis, for appellees.

AX, Judge.

This appeal is from an action by the appellees brought for the purpose of the redetermination of the value of the estate and amount of inheritance tax due in the estate of a nonresident, pursuant to the provisions of the Acts of 1931, ch. 75, § 20 and § 21; Burns' Ind.Stat., § 7-2421, 1953 Repl., and subject to other provisions of the Inheritance Tax Law.

The issues were formed by the filing of appellees' Petition For Redetermination Of The Value Of The Estate And Amount Of Inheritance Tax.

The sole issue thus formed resolved itself into the following question: Are or are not shares of stock in an Indiana Corporation owned by a resident of the State of Georgia and located in the State of Georgia, exempt from inheritance tax of the State of Indiana under the reciprocity section of the Indiana Inheritance Tax Law, being Acts of 1931, ch, 75, § 27 as found in Burns' Ind.Stat., § 7-2427, 1953 Repl.?

The Probate Court of Marion County, Indiana, entered a judgment for the appellees to the effect that the shares of stock in the Indiana corporations owned by residents of the State of Georgia and located in the State of Georgia are not subject to inheritance taxation by the State of Indiana.

The error assigned before us is the trial court's action in overruling the appellant's motion for a new trial.

The appellant's motion for a new trial, omitting the formal caption, is as follows:

1. The decision of the Court is not sustained by sufficient evidence.

2. The decision of the Court is contrary to law.

Inasmuch as appellant's specifications in the motion for a new trial present substantially the same question, this Court will herein address its opinion to a consideration of both specifications.

The pertinent facts in this case are not disputed and were agreed to by a stipulation of facts filed in the trial of the cause.

The appellees concede in their brief that the State of Indiana had the right and jurisdiction to tax shares of stock in an Indiana corporation owned by a decedent resident in the State of Georgia, unless some section of the Indiana Inheritance Tax Law exempted such shares from tax. It is the appellees' contention that Burns' Ind.Stat., § 7-2427, 1953 Repl., granted such an exemption. The burden being upon appellees to prove such exemption, we will first list the pertinent points advocated by appellees.

This entire case rests upon the interpretation of said Burns' Ind.Stat., § 7-2427, which provides 'Nonresidents' estates--Reciprocity.--The tax imposed by the provisions of this act (§ 7-2401-s 7-7422) in respect of personal property, except tangible personal property having an actual situs in this state, shall not be payable if the transferor at the time was a resident of a state or territory of the United States, or of any foreign country, which at said time of his death, by the laws of such state, territory or country of residence of the transferor contained a reciprocal exemption provision under which nonresidents were exempted from transfer taxes or death taxes of every character in respect of personal property, except tangible personal property having an actual situs therein: Provided, that the state, territory or country of residence of such nonresidents allowed a similar exemption to residents of the state, territory, or country of residence of such transferor. For the purpose of this section the District of Columbia and possessions of the United States shall be considered territories of the United States.'

The appellees contend that Georgia in effect grants reciprocity by virtue of the following reasons, to wit:

1. The laws of Georgia would not impose a tax on the value of shares in Georgia corporations owned by Indiana decedents; and

2. Omission to tax by the State of Georgia is equivalent to a reciprocal exemption provision as required by the Indiana Inheritance Tax Law.

In support of their first above-named reason, appellees set forth the only pertinent statutory laws of Georgia pertaining to collection of inheritance taxes by the State of Georgia, which statutes are as follows:

Code of Georgia, 1933, § 92-3401:

'Assessment and collection of 80 per centum of Federal estate tax as State tax; returns.--It shall be the duty of the legal representative of the estate of any person who may die a resident of this State, and whose estate is subject to the payment of a Federal estate tax, to file with the State Revenue Commission a duplicate in the return which he is required to make to the Federal authorities, for the purpose of having the estate taxes determined. When such duplicate is filed, the Commission shall compute the amount that would be due upon said return as Federal estate taxes under the Act of Congress relating to the levy and collection of Federal estate taxes upon the property of said estate taxable in Georgia, and assess against said estate as State taxes 80 per centum of the amount found to be due for Federal estate taxes: Provided, that if after the filing of a duplicate return and the assessment of the Federal estate tax, an amended return shall be filed with the State Revenue Commission showing all changes made in the original return and the amount of increase or decrease in the Federal estate tax, and the State Revenue Commission shall assess against said estate 80 per cent. of the additional amount found to be due for Federal estate tax. In the event of a decrease in the Federal estate tax, the State shall refund to said estate its proportion of said decrease.'

§ 92-3401.1:

'Nonresident decedents; amount of tax.--It shall be the duty of the legal representative of the estate of any person who may die a nonresident of this State but who owns or controls property located within this State, and whose estate is subject to the payment of a Federal estate tax, to file with the State Revenue Commissioner a duplicate of the return which he is required to make to the Federal authorities and pay a tax thereon as determined by section 92-3401. The amount of the tax to be paid shall be in proportion to the amount of property located in this State as compared to the total amount of property located elsewhere.'

Appellees contend that the significant language in the last quoted section is 'but who owns or controls property located within this State'. They argue that the only logical construction of this section is that it refers to tangible personal property physically present in Georgia and intangible personal property which has acquired a business situs in Georgia. The appellees cite no case decided by the Courts of Georgia in support of their construction or interpretation that reciprocity exists in nonresidents' estates between Indiana and Georgia.

Appellees state in their brief 'there is no question in this case that the State of Georgia has the authority or power with respect to stock in Georgia corporations owned by nonresident decedents; but the mere fact that Georgia has the power or authority does not mean that it has been exercised by the Georgia Legislature.'

In further support of this first contention, in the absence of any Georgia laws or express grant of reciprocity by affirmative statement of the Georgia Legislature, in the trial of this action appellees introduced as undisputed evidence a letter by the Attorney General of Georgia to the effect that Georgia would not levy a similar tax in a reverse situation to the case herein, that is to say Georgia would not levy an inheritance tax upon an Indiana resident similarly situated. And, appellees further introduced in evidence undisputed testimoney of a lawyer who was a member of the Bar of the State of Georgia to the effect that 'the laws of Georgia did not permit or allow the taxation of stocks in the hands of a nonresident decedent's estate'.

In support of their second above named reason for their argument that the laws of Georgia grant reciprocity, namely, 'omission to tax by the State of Georgia is equivalent to a reciprocal exemption provision as required by the Indiana Inheritance Tax Law', appellees propound the argument that 'it was the legislative intent to avoid the evil of double taxation', and 'that this intent should not be frustrated merely because the foreign state's laws are not identical in terms to the laws of the forum'.

This Court agrees in principle with the appellees in abhorring the evils of double taxation--but, regardless of its sympathy,...