Perpetual Bldg. & Loan Ass'n of Columbia v. South Carolina Tax Commission, 19190

• Decision Date: 24 March 1971
• Docket Number: No. 19190,19190
• Citation: 180 S.E.2d 195,255 S.C. 523
• Court: South Carolina Supreme Court
• Parties: PERPETUAL BUILDING AND LOAN ASSOCIATION OF COLUMBIA, Appellant, v. SOUTH CAROLINA TAX COMMISSION, Respondent.

Page 195

180 S.E.2d 195

255 S.C. 523

PERPETUAL BUILDING AND LOAN ASSOCIATION OF COLUMBIA, Appellant, v. SOUTH CAROLINA TAX COMMISSION, Respondent.

No. 19190.

Supreme Court of South Carolina.

March 24, 1971.

Charles F. Cooper, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Joe L. Allen, Jr., and G. Lewis Argoe, Jr., Columbia, for respondent.

MOSS, Chief Justice.

This action between Perpetual Building and Loan Association of Columbia, the appellant herein, and the South Carolina Tax Commission, the respondent herein, arose out of an attempt on the part of the respondent to require the appellant to pay income tax to the State. The appellant prosecutes that appeal from an order of the lower court granting summary judgment, in accordance with Circuit Court Rule 44, in favor of the respondent.

The appellant was organized and chartered as a building and loan association pursuant to the provisions of Section 12--51 Et seq., of the 1962 Code of Laws. It appears that the appellant did, except for the year ending December 31, 1969, file an income tax return for the years 1966, 1967 and 1968, and such returns indicated that no taxes were due or payable by it for such years. During 1969 the respondent made an assessment, after an examination and audit, against the appellant for income taxes, interest and penalties allegedly due and unpaid on its net income for the years 1966 through 1969, inclusive, totalling in the aggregate $63,464.64.

The respondent, being authorized and required by law to administer and enforce the income tax statutes for this State declared, pursuant to applicable statutes, that the taxes, interest and penalties allegedly due on the net income of the appellant, to be in jeopardy and, therefore, made demand upon it on November 14, 1969, for the immediate payment thereof as follows--for the year 1966 the amount of $5,553.59; for 1967 the amount of $26,123.13; for 1968 the amount of $12,763.89; and for 1969 the amount of $16,000.00. The appellant failed to make the payment thereof, contending that it owed no income taxes for the years in question. The respondent, following appellant's failure to make payment as demanded, issued a warrant for distraint, recording the same on November 14, 1969, in the office of the Clerk of Court of Richland County, in the amount of $63,464.64. The respondent, thereafter, levied upon the funds of the appellant on deposit in the Commercial Bank and Trust Company of Columbia, South Carolina, and did receive therefrom the sum of $97.88.

The appellant, on December 3, 1969, instituted this action in the Court of Common Pleas for Richland County, under the provisions of Sections 65--2661 and 65--2662, of the Code, seeking recovery of the $97.88, alleging the same was illegally and wrongfully collected, and for a determination by the court that all of the aforesaid income tax assessments made against it were illegal, null and void. Thereafter, the respondent moved for summary judgment on the ground that the appellant could not invoke Sections 65--2661 and 65--2662 to recover a partial payment of taxes and have its entire tax liability adjudicated without first paying under protest the entire tax assessment alleged to be illegal, as such payment was a condition precedent to the bringing of an action pursuant to the aforementioned Code sections. The respondent further asserted that since the appellant had not paid the taxes in question, as required by statute, no cause of action was stated against it and the court was without jurisdiction to entertain such.

The motion of the respondent for summary judgment came on to be heard in the lower court on March 17, 1970, and the appellant, at such time, attempted to move for summary judgment in its behalf upon various grounds. Objection by the respondent to the consideration of the appellant's motion for summary judgment was made on the ground that such motion had not been timely submitted in accordance with Circuit Court Rule 44, which required that such motion be served at least ten days before the time fixed for the hearing. The objection of the respondent to the appellant's motion was properly sustained by the trial judge, because of the appellant's admitted failure to comply with the aforesaid rule.

The trial judge, by order dated April 14, 1970, granted the motion of the respondent for summary judgment, holding that the appellant was not entitled to maintain this action pursuant to Code Sections 65--2661 and 65--2662, because it had not paid under protest the entire amount of the income taxes, alleged to have been illegally assessed, such payment being a condition precedent to the bringing of an action under these Code Sections. He further held that a...