Milwaukee Cnty. v. Milwaukee W. Fuel Co.

• Decision Date: 10 March 1931
• Citation: 204 Wis. 107,235 N.W. 545
• Parties: MILWAUKEE COUNTY v. MILWAUKEE WESTERN FUEL CO.
• Court: Wisconsin Supreme Court

204 Wis. 107

235 N.W. 545

MILWAUKEE COUNTY

v.MILWAUKEE WESTERN FUEL CO.

Supreme Court of Wisconsin.

March 10, 1931.

Appeal from a judgment of the Circuit Court for Milwaukee County; Charles L. Aarons, Circuit Judge.

Action by Milwaukee County against the Milwaukee Western Fuel Company. From a judgment dismissing plaintiff's complaint, plaintiff appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

The action was brought on July 17, 1928, by Milwaukee county to recover a balance of income tax alleged to be due from the defendant for the year 1928. From a judgment entered July 12, 1930, in favor of the defendant, dismissing plaintiff's complaint on the merits, the plaintiff appeals.

The complaint alleges that there was assessed against the defendant in 1928, for income taxes, the sum of $39,626.91; that no part of this has been paid, except the sum of $14,437.23; that there is a balance due amounting to $25,189.68, which defendant refuses to pay. The defendant, in paragraph 3 of its answer, alleges that it was assessed as an occupation tax in 1928, the sum of $25,189.68; that it paid this tax and presented the receipt therefor to the county treasurer as an offset to its income tax; that the amount so paid is a lawful offset, and that the county treasurer declined and still declines to accept said receipt as a credit or offset.

Paragraph 4 of the answer alleges that on or about December 15, 1927, it paid to the city treasurer of the city of Milwaukee the sum of $28,315.93 in discharge of the occupation tax assessed against it for the year 1927; that it tendered the receipt therefor to the county treasurer as an offset to the income tax assessed in 1928, but that the county treasurer refused and still refuses to credit this payment as an offset against said income taxes. The answer contains the further allegation that, if the receipt for the 1928 occupation tax is not a proper offset, then that for the 1927 occupation tax is a proper offset and should be allowed as a credit.

The plaintiff demurred to the defenses contained in paragraphs 3 and 4 on the ground that neither stated facts sufficient to constitute a defense.

The trial court overruled the demurrer to paragraph 3 and sustained that to paragraph 4.

The action was tried before the court without a jury upon an agreed statement of facts. The stipulation discloses that respondent is a Wisconsin corporation, and is a coal dock operator in Milwaukee, Wis.; that on May 1, 1928, it furnished to the proper assessors of income in the city of Milwaukee a correct statement of the tonnage of all coal handled over its Milwaukee docks in the year ending April 30, 1928. The occupation tax provided for by section 70.42 was computed on the reported tonnage, and the assessment rolls were filed by the district assessors with the tax commissioner of the city of Milwaukee on or about the last Monday in June, 1928. They were duly checked by the board of review of the city of Milwaukee and returned to the tax commissioner of said city on August 4, 1928. On August 18, 1928, the tax commissioner of Milwaukee affixed the following indorsement to a copy of the tonnage statement above referred to: “The above figures are as they appear on the assessment rolls and are correct.”

The respondent then delivered this copy with the indorsement attached to the city treasurer of Milwaukee, who accepted payment of the sum of $25,189.68 in full payment of the occupation taxes due from respondent for the year ending April 30, 1928. Income taxes totaling $39,626.91 were duly assessed against the defendant in the year 1928, on account of income received by defendant during the years 1926 and 1927. This tax was due June 1st, and there was paid in June $14,437.23 on account thereof. The respondent at the same time filed with the treasurer a letter claiming the right to offset its occupation tax assessed and payable in December, 1928. On August 20, 1928, the respondent tendered the county treasurer as a credit the occupation tax receipt given to it by the city treasurer, but the county treasurer refused to accept the same or to recognize or allow the payment of the occupation tax as an offset. The annual tax roll of the city of Milwaukee was delivered to the city treasurer in December, 1928, and the amount of the occupation tax assessed against respondent was the same as that actually paid by them to the city treasurer, namely $25,189.68.

As a conclusion of law the court found that the respondent had the right to an offset of its occupation tax assessed in 1928, when paid, against income taxes payable in that year, on tender to the county treasurer of proper evidence of payment of the tax.

George A. Bowman, Dist. Atty., and C. Stanley Perry, Asst. Dist. Atty., both of Milwaukee, for appellant.

Fawsett & Shea, of Milwaukee, for respondent.

WICKHEM, J.

The issue in this case is whether the right of a coal dock operator to offset the occupation tax assessed to him in 1928 against his income tax assessed in the same year has been lost by amendment to the income tax law made by chapter 539, Laws of 1927, which advanced the final time for payment of income taxes to July 1st, but which did not amend the occupation tax offset law, so that the income tax payment is due during the month of June, while the local treasurer is not presented with the tax roll containing the occupation tax until December. It is the contention of Milwaukee county that the administration of the offset has become impossible by reason of this amendment. With respect to the 1927 occupation tax it is contended that under the decisions of this court such taxes can only be offset against income taxes assessed in the same year.

Section 70.42, Stats. 1927, provides for an occupation tax. It is provided that persons or corporations operating coal docks in this state, other than a dock used solely in connection with an industry and handling no coal except that consumed by the industry, shall on or before December 15th of each year pay an annual occupation tax of 1 1/2 cents per ton upon all bituminous coal, and two cents per ton upon all anthracite coal handled by or over such coal dock, during the preceding year ending April 30th. It is also provided that such coal shall be exempt from all taxation, either state or municipal. It is further provided that the tax shall be collected in the same manner as taxes on personal property, and when paid may be credited to or offset against income taxes in the same manner as personal property taxes are credited or offset, as provided in section 71.21, Stats. 1923. That section provided: “Any person who shall have...