Langer v. Gray
| Decision Date | 19 September 1944 |
| Docket Number | 6929. |
| Citation | 15 N.W.2d 732,73 N.D. 437 |
| Parties | LANGER v. GRAY. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. An order made by the State Tax Commissioner pursuant to Sec 2, Ch. 240, Sess.Laws N.D.1929, revising a former order making an additional assessment of income tax, is appealable under the provisions of Sec. 15, Ch. 240, Sess.Laws N.D.1941.
2. Under the provisions of Ch. 284, Sess.Laws N.D.1931, the State Tax Commissioner is empowered to assess any additional income tax found to be due and notify the taxpayer thereof not later than three years after the due date of the taxpayer's return.
3. Where a taxpayer has, prior to the time fixed by Sec. 5, Ch 241, Sess.Laws N.D. 1937, for filing his income tax return applied to and obtained from the Tax Commissioner an extension of time within which to file his return, the due date of the return is the time appointed or required by the order for the filing thereof, and the period provided by Ch 284, Sess.Laws N.D.1931, within which the Tax Commissioner may assess an additional tax against the taxpayer begins to run as of the date to which the time for filing has been extended Alvin C. Strutz, Atty. Gen., C. E. Brace, Asst. Atty. Gen., and Charles Simon, Atty. for Tax Department, of Bismarck, for appellant.
Cox, Cox & Pearce and J. K. Murray, all of Bismarck, for respondent.
This matter comes to the Supreme Court upon an appeal from a judgment of the District Court of Burleigh County, decreeing that a certain additional assessment of income taxes against William Langer for the year 1938 is null and void and canceled of record. This judgment was entered upon a motion for judgment upon the pleadings. No trial has been had upon the merits.
The proceedings that led up to the entry of the judgment are as follows: During the year 1938 the taxpayer involved herein was a citizen and resident of the State of North Dakota and subject to the payment of an income tax as provided by law. Prior to March 15, 1939 the taxpayer requested of the Tax Commissioner an extension of time within which to file his 1938 return which would otherwise have become due on March 15, 1939 under the provisions of Sec. 5, Ch. 241, Sess. Laws N.D.1937. The request was granted and the taxpayer was given until May 31, 1939 to file his 1938 return. The return was filed May 26, 1939 and contained a report and computation of the tax. The return was accompanied by payment of the tax as computed therein.
On April 16, 1942 the Tax Commissioner made an additional assessment of an amount of tax over and above that already paid. Notice of this assessment was served on the taxpayer on April 22, 1942. This notice contained a statement that protest of the additional assessment might be made within 30 days. The taxpayer verbally protested and requested a hearing on the additional assessment and it was agreed by the taxpayer and the Commissioner that a hearing he had on April 28, 1942. One that date the taxpayer appeared and a stipulation was entered into in writing between the taxpayer and the Commissioner waiving the usual written protest and written notice of hearing. The hearing then proceeded and the taxpayer's testimony was taken under oath. After the hearing the Commissioner again computed the additional assessment and fixed it at the sum of $1566.67 which was a reduction of $27.75 from the original reassessment. Notice of the amount of this last computation was received by the taxpayer on November 10, 1942. On November 24 the taxpayer served a notice of appeal from the order thus redetermining his assessment. This notice purports to take an appeal to the District Court from the order of the Tax Commissioner and is given pursuant to Sec. 15, Ch. 240, Sess.Laws N.D.1941. That chapter prescribes uniform rules of practice for reviewing determinations of administrative agencies by the Courts. It is not a part of the income tax statutes. The notice of appeal was accompanied by specifications of error. The Tax Commissioner moved to dismiss the appeal for want of jurisdiction upon two counts. First, that no complaint had been filed as provided by the appellate procedure contained in the income tax act, Sec. 2346a38, Supp. to Comp.Laws, and, second, that the order from which the appeal was taken was not an appealable order under the provisions of the act under which the appeal was attempted to be taken, Sec. 15, Ch. 240, supra. On December 1, 1942 the Court, after hearing, made an order staying enforcement of the additional assessment until the further order of the Court.
On December 3, 1942 the taxpayer commenced a proceeding against the Commissioner under the provisions of Sec. 2346a38, Supp. to Comp.Laws, wherein he sought a determination by the District Court that the additional assessment be declared null and void. An answer was served by the Commissioner.
On November 18, 1943 the taxpayer moved for judgment on the pleadings. When this matter came on for hearing the Commissioner again pressed his motion for dismissal of the appeal. The entire matter was then heard before the District Court who made findings against the Commissioner on his motion to dismiss the appeal and further found that the taxpayer was entitled to judgment on the pleadings, decreeing the additional assessment null and void. This appeal is taken from the judgment entered upon those findings.
This matter was presented to the District Court through two attempted appeals. One taken under the Administrative Agencies Uniform Practice Act, Ch. 240, Sess.Laws N.D.1941, the other was taken under the appeal provisions of the income tax statutes, Sec. 2346a38, Supp. to Comp.Laws. The Court denied the motion to dismiss the appeal under the first method, which denial is specified as error herein. There are two grounds set forth as a basis of the motion. The first is that an appeal must be taken in this instance under the procedure outlined in the Income Tax Statutes, rather than under the Administrative Agencies Uniform Practice Act. That act purports to provide a uniform practice to be pursued by administrative agencies and a uniform method of reviewing determinations of such agencies. Sec. 1 of the act defines the terms 'administrative agencies' and 'the agency' to 'mean and include any officer, board, commission, bureau, department, or tribunal other than a court, having state-wide jurisdiction and authority to make any order, finding, determination, award, or assessment which has the force and effect of law and which has statute is subject to review in the courts of this state.' The State Tax Commissioner is clearly an officer whose powers and duties bring him within the scope of this definition.
Section 22 of this act provides: 'This act, and the procedure herein specified, shall apply to all claims and proceedings filed in or commenced by any...
To continue reading
Request your trial