Noonan v. East-West Beltline, Inc., EAST-WEST
| Decision Date | 31 March 1986 |
| Docket Number | EAST-WEST |
| Citation | 487 So.2d 237 |
| Parties | Lionel W. NOONAN, in his official capacity as Judge of Probate of Mobile County v.BELTLINE, INC. 84-762. |
| Court | Alabama Supreme Court |
Mary Beth Mantiply, of Noojin & McNair, Mobile, for appellant.
E.B. Peebles, III and James Dale Smith, of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves and William M. Moore, Mobile, for appellee.
Lionel W. Noonan appeals from the summary judgment granted in favor of East-West Beltline, Inc., which holds that East-West Beltline, Inc., (hereinafter "East-West") is entitled to a $24,184.21 refund of recording taxes.
The uncontested facts are as follows:
East-West was the owner of all of the outstanding capital stock of the Bel Air Corporation. 1 On March 15, 1984, Bel Air entered into two separate financing transactions with AmSouth Bank, N.A. ("AmSouth"). The first financing transaction ("revolver loan") entered into on this date was an amendment to an existing revolving credit agreement which, among other things, increased the loan from AmSouth to Bel Air and required an amendment to an existing mortgage from Bel Air to AmSouth ("amended revolver mortgage"). At the time of the recording of the amended revolver mortgage the amount of indebtedness was $6,999,400.00. The judge of probate collected a mortgage privilege tax in the amount of $10,499.10 in accordance with Ala.Code (1975), § 40-22-2.
Prior to issuing the revolver loan, AmSouth required that East-West guarantee the indebtedness of Bel Air to AmSouth secured by the amended revolver mortgage and that East-West mortgage some of its property as additional security for such indebtedness. In accordance with these requirements, an amendment to the mortgage from East-West to AmSouth ("amended revolver additional security mortgage") was recorded immediately after the recording of the amended revolver mortgage. The property covered by the amended revolver additional security mortgage was additional security for the indebtedness of Bel Air secured by the amended revolver mortgage, for which an additional $10,499.10 in taxes was paid. Such payment was duly noted by the judge of probate as being paid under protest.
The second financing transaction ("term loan") was a term loan which provided for a loan from AmSouth to Bel Air and required a mortgage on certain property owned by Bel Air ("term loan mortgage"). At the time of the recording of the term loan mortgage, the amount of indebtedness with respect thereto was $4,050,000.00, and the judge of probate collected a mortgage privilege tax in the amount of $6,005.00. The payment of such mortgage privilege tax was in accordance with Ala.Code (1975), § 40-22-2.
In order to consummate the term loan, AmSouth required East-West to guarantee the indebtedness of Bel Air to AmSouth secured by the term loan mortgage and required that East-West mortgage some of its property to AmSouth as additional security for such indebtedness of Bel Air to AmSouth. In accordance with the requirement of AmSouth, a mortgage from East-West to AmSouth ("term loan additional security mortgage") was recorded immediately after the recording of the term loan mortgage. The property covered by the term loan additional security mortgage was additional security for the indebtedness of Bel Air secured by the term loan mortgage, upon which indebtedness the mortgage recording privilege tax of $6,005.00 had already been paid.
At the time of presentation for recording of the term loan additional security mortgage, the judge of probate demanded that an additional mortgage privilege recording tax be paid. In order to obtain the recording of the term loan additional security mortgage, East-West paid an additional mortgage privilege recording tax in the amount of $6,075.00. The additional tax was paid under protest, and that fact was duly noted on the receipt for the tax by an agent of the judge of probate.
In addition to the transactions described above, AmSouth made advances under the amended revolver loan during the period September 1, 1983, through September 1, 1984, for which no mortgage recording privilege tax had previously been paid. As required by statute, AmSouth reported these additional advances, and forwarded its payment of $15,220.22 for mortgage recording privilege tax on those advances. That payment was allocated one-half to the amended revolver mortgage and one-half to the amended revolver additional security mortgage; the $7,610.11 allocable to the amended revolver additional security mortgage was paid under protest.
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