Rahr v. Smith

• Decision Date: 12 October 1943
• Citation: 11 N.W.2d 355,243 Wis. 497
• Parties: RAHR v. SMITH, State Treasurer.
• Court: Wisconsin Supreme Court

243 Wis. 497

11 N.W.2d 355

RAHR

v.SMITH, State Treasurer.

Supreme Court of Wisconsin.

Oct. 12, 1943.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Affirmed.

The action was commenced by Clara Rahr, plaintiff, against Robert K. Henry, state treasurer, to recover income taxes paid under protest. John M. Smith, state treasurer, was later substituted as defendant when he succeeded to that office. The action was tried to the court, findings of fact and conclusions of law duly made and entered, and judgment was entered on July 9, 1942, dismissing plaintiff's complaint. The material facts will be stated in the opinion.

Nash & Nash, of Manitowoc, for appellant.

John E. Martin, Atty. Gen., and Harold H. Persons, Asst. Atty. Gen., for respondent.

WICKHEM, Justice.

The facts are not in dispute. Plaintiff was a resident of Manitowoc in the state of Wisconsin prior to December 31, 1933. On that date she became a resident of California and continued thereafter to reside in California. Pursuant to provisions of section 6, Chapter 15, Laws of Wisconsin, 1935, effective March 27, 1935, an emergency relief tax of $1,078.10 was assessed against plaintiff on her net income for 1933 and notice of the assessment of this tax was duly sent to and reached plaintiff on July 1, 1935. Plaintiff objected to the assessment of the tax on the ground that if valid as to residents of Wisconsin it could not be lawfully collected from plaintiff because she was a nonresident of the state. On December 19, 1935, however, plaintiff paid under protest the amount of the tax with interest and penalties.

This action was brought to recover the amount so paid and the taxpayer asserts in the alternative that the legislative intent was not to tax persons who were nonresident at the time of enactment, and that if such was the intent, it is unconstitutional.

Chapter 15, Laws of 1935, section 6 is entitled “Emergency Relief Tax On Certain 1933 Dividends.” It levies an emergency tax on the net dividend income of all persons in the calendar year 1933.

Subsection 4 provides: “* * * Except as provided in this section, said tax shall be assessed, collected and paid in the same manner, and insofar as applicable subject to the same regulations as are provided for the assessment, collection and payment of the normal 1934 income tax; provided that section 71.12 and 71.14 shall not apply. * * *” It is contended that the provision quoted from chapter 15 is indistinguishable from corresponding provisions in chapter 363, Laws of 1933, which was construed in Messinger v. Wisconsin Tax Commission, 222 Wis. 156, 267 N.W. 535, as not intended to operate retroactively. On the other hand, the provisions of chapter 15 are claimed to be distinguishable from the portion of chapter 29, special session of 1931-32, which was construed in Scobie v. Wisconsin Tax Comm. 225 Wis. 529, 275 N.W. 531, to be retroactive in operation.

The trial court was of the view that the Scobie and Messinger cases are indistinguishable and incompatible and that the Scobie case must be considered to have overruled the Messinger case. Appellant claims that this is error, since the opinion in the Scobie case purports to distinguish the two cases.

Section 2 of Chapter 363, Laws of 1933, imposed an emergency tax “upon the net incomes of all persons other that corporations in the calendar year 1932 * * *” and provided in subsection (2): “The emergency tax on incomes levied in this section shall be assessed, collected, and paid in the same manner, upon the same income, subject to the same regulations, and at the same time as is provided by law for the assessment, collection and payment of the normal income tax on persons other than corporations, * * *.”

In the Messinger case this court stated that the language of this section repels the conclusion that it was intended to apply to those who were residents during the calendar year of 1932 but nonresidents when the emergency tax was passed in 1933. The argument is that the act purports to levy upon persons. “* * * It is made in the year 1933. It is an income tax. The word ‘persons' in the statute should be given the same meaning that it has in the normal income tax statute. * * * The general statute evinces no purpose or intent to impose a tax upon income except from property or business transacted within the state upon any but residents of the state. No other purpose or intent should be imputed to the instant statute. * * * The act makes no attempt and shows no intent to levy the tax imposed retroactively. * * *” In the Scobie case, chapter 29, Laws of the Special Session of 1931-1932, section 4 entitled “Emergency Income Tax” provided:

“(1) * * * there is levied and there shall be assessed, collected, and paid, in addition to all other income taxes, an emergency tax upon the net incomes of all persons other than corporations in the calendar year 1931 * * *.

“(2) The emergency tax on incomes levied in this section shall be assessed, collected and paid in the same manner, upon the same income, and at the same time as provided by law for the assessment, collection and payment of the normal income tax on persons other than corporations. * * *

“(3) The exemptions specified in section 71.05 shall apply to the emergency income taxes herein imposed, * * * as shall all other provisions of law governing normal income taxes, except as otherwise expressly provided in this section. * * *”

This case also involved a taxpayer who removed from the state during 1931. This court considered that the italicized portions of ...