R. C. Jones Cotton Co. v. State

• Decision Date: 05 November 1929
• Docket Number: Case Number: 17853
• Citation: 139 Okla. 212,1929 OK 482,282 P. 622
• Parties: R. C. JONES COTTON CO. v. STATE.
• Court: Oklahoma Supreme Court

1929 OK 482

282 P. 622

139 Okla. 212

R. C. JONES COTTON CO. v. STATE.

Case Number: 17853

Supreme Court of Oklahoma

Decided: November 5, 1929

Syllabus

¶0 1. Taxation--Moneyed Capital, Surplus and Undivided Profits not Assessable as Omitted Property Where Corporation Had Placed All Assets on Tax Rolls.

Where a corporation has caused all of its assets to be placed on the tax rolls and has paid the taxes thereon, and an attempt is made to assess its moneyed capital, surplus, and undivided profits as omitted property, under the provisions of the tax ferret statute, such attempt is illegal and not warranted by the statutes and the decisions of this court construing the same. State v. Cushing Grocery Co., 135 Okla. 186, 274 P. 876.

2. Same--Real Estate of Corporation Listed for Taxation in Name of Another not "Omitted Property."

Where real estate located in this state owned by a corporation and paid for from its moneyed capital, surplus and undivided profits has been listed for taxation, but not in the name of the corporation, and the corporation has paid the tax thereon, the county treasurer, in a tax ferret proceeding, is neither authorized to place the same on the tax rolls as omitted property, nor to place the assessed value thereon on the tax rolls as omitted "moneyed capital, surplus and undivided profits," notwithstanding the language of section 9606, C. O. S. 1921, providing for the assessment of the value of the moneyed capital, surplus and undivided profits of a corporation "* * * less the assessed valuation of any real estate located in this state owned by such corporation and listed separately in the name of such corporation." Having been listed for taxation and the tax thereon having been paid, neither the property nor the assessed value thereof constitutes "omitted property," and the county treasurer is without jurisdiction.

3. Same--Proceeding by Tax Ferret to Assess Omitted Property--Issue and Burden of Proof.

In a proceeding by a tax ferret to place omitted property on the tax rolls, the question at issue is: Did the taxpayer, in the years named, own the property described and of the value stated, and did the assessor omit placing it upon the tax rolls? The state affirms the facts stated and the taxpayer denies them. The state and not the taxpayer seeks affirmative relief. There is no presumption of law that the property has been wrongfully omitted by the assessor. It is elementary that the burden of proof is upon him who so affirms and seeks relief, and that is the state. In re Daniels' Omitted Property, 108 Okla. 195, 235 P. 543.

4. Same--Value of Moneyed Capital, Surplus and Undivided Profits of Corporation as Basis of Taxation--Insufficiency of Proof--Statutes.

Under the provisions of section 7318, R. L. 1910, amended by section 4, art. 1. chap. 107, S. L. 1915, and by chapter 203, S. L. 1919, said section now appearing as section 9606, C. O. S. 1921, the basis of taxation is, and at all times during the period covered by the tax attempted to be levied in this case was, the value of the moneyed capital, surplus and undivided profits of the corporation, on the date fixed, which, until adoption of section 4, Id., was March 1st, and since which time was January 1st. Until the adoption of chapter 203, Id., the basis was the net value. The value thereof on the date fixed by statute is capable of proof the same as the value of other property. The same rules for determination of value apply. The record in this case shows that there was no attempt made to fix values on any particular date or to differentiate between value and net value.

5. Same---Necessity for Proof of Value at Date Fixed for Assessment.

Proof of the value of the moneyed capital, surplus and undivided profits of a corporation must, under the statute, be confined to the facts "as they existed" on the date fixed therein for assessment, and proof of value thereof at some other date without proof that the value thereof did not change, is not sufficient. Where it is shown that a corporation with an authorized capital of $ 75,000 sustained a loss of $ 35,000 during one year and a gain of $ 35,000 during another year, the evidence of value must be limited to the date fixed for assessment.

6. Same--Evidence as to Value Held Insufficient.

Proof of the amount of capital stock issued and paid for, that the corporation earned profits which were distributed to the stockholders as dividends on stock, the value of shares of stock in the corporation and the amount of capital used by the corporation, is not proof of the value of the moneyed capital, surplus and undivided profits of the corporation on the date fixed by law for assessment of property.

Error from County Court, Payne County; L. H. Woodyard, Judge.

Proceeding to assess as omitted property the moneyed capital, surplus, and undivided profits of the R. C. Jones Cotton Company, a corporation. From judgment of county court, the company appeals; the State filing cross-petition in error. Reversed.

Wilcox & Swank and Rainey, Flynn, Green & Anderson, for plaintiff in error.

C. C. Suman, for the State.

ANDREWS, J.

¶1 The parties will be referred to for convenience as they appeared in the trial court; the state of Oklahoma, plaintiff in the court below, defendant in error and cross-plaintiff in error, will be called plaintiff, the R. C. Jones Cotton Company, defendant in the court below, plaintiff in error and cross-defendant in error, will be called defendant.

¶2 The finding of the trial court contains a statement of facts disclosed by the record which we think is substantially correct and which we quote, as follows:

"This is an action which was begun before the county treasurer of Payne county, Okla., on the 13th day of July, 1925, by J. H. Brown, tax ferret of Payne county, Okla., by filing a report with the county treasurer of Payne county, Okla., to the effect that he, as such tax ferret, has discovered that the R. C. Jones Cotton Company of Cushing, Okla., was the owner of certain property consisting of moneyed capital, surplus and undivided profits, of the fair cash value of $ 100,000 which property was subject to taxation in Payne county, Okla., for the years 1908 to 1924, inclusive. And which property was not listed nor assessed, and not extended on the tax rolls of said county for any of said years. That thereupon, the county treasurer of Payne county issued a notice to the R. C. Jones Cotton Company informing said company that the said J. H. Brown, tax ferret, had filed in the county treasurer's, office of said county an information to the effect that said R. C. Jones Cotton Company was the owner of personal property consisting of moneyed capital, surplus, and undivided profits, for the fair cash value of $ 100,000 subject to taxation in Payne county, for the years 1908 to 1924, inclusive, and not assessed, and not extended on the tax rolls of said county.

"That therefore, on the 1st day of September, 1925, said R. C. Jones Cotton Company filed before the county treasurer of said county, certain objections and exceptions to the proposed assessment of said property, and that it objected to the proposed assessment of said J. H. Brown, tax ferret, and it specifically denied that it omitted any property of any character, or description, either real, personal or mixed which it owned, and which was subject to taxation in Payne county, Okla., from the 1st day of January for the years 1908 to 1924, inclusive, from taxation, and averred that it made its returns of all of its property, legally assessable to said corporation to the county assessor of Payne county, Okla., in the manner and form as required by law, and in manner and form as required by the said county assessor, and had paid all of the taxes assessed against said property for each of said years, and denied specifically each and every allegation of the tax ferret contained in his information filed herein, relative to the omission of property by it for taxation for the years above set out.

"That thereafter, on the 20th day of November, 1925, said cause came on for hearing before the county treasurer, who having heard the evidence, entered an order finding that said R. C. Jones Cotton Company is, and was, during the years 1911 to 1924, inclusive, an Oklahoma corporation, having its principal place of business in the city of Cushing, Payne county, Okla., and was in possession of the property hereinafter set out, on the first day of the fiscal tax years on each of the tax years hereinafter mentioned, and that the same has not been assessed for taxation, but was wholly omitted therefrom, and that the same was of the fair cash value as follows: (List of valuations omitted as immaterial to this decision) and ordered and adjudged that an assessment be prepared on the tax rolls of said county against the R. C. Jones Cotton Company, as in the city of Cushing, in the said county of the respective amounts for the years above mentioned for the capital, surplus, and undivided profits theretofore omitted from taxation, and that said respective assessments bear the penal and statutory interest from this date, at the rate of 15 per cent. per annum.

"And thereafter, on the 23rd day of November, 1925, said R. C. Jones Cotton Company filed with the county treasurer, the tax ferret, and board of county commissioners, of Payne county, Okla., a notice of appeal appealing said cause to the county court of Payne county, Okla., as provided by law, and the records show that the appeal was completed on the 28th day of November, 1925, by causing to be filed an appeal bond for the sum of $ 1,000, which was delivered and approved by the county treasurer.

"On the 27th day of November, 1925, the state of Oklahoma filed a cross-appeal, service of notice thereof was served on the R. C. Jones Cotton Company on the 28th day of November, 1925.

"All of the papers in the case was transmitted by M. E. Basil, county treasurer of Payne county, Okla., to the office of the court

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