Robertson v. United States Nursery Co.

• Decision Date: 22 December 1919
• Docket Number: 20775
• Citation: 121 Miss. 14,83 So. 307
• Court: Mississippi Supreme Court
• Parties: ROBERTSON, STATE REVENUE AGENT, v. UNITED STATES NURSERY CO

83 So. 307

121 Miss. 14

ROBERTSON, STATE REVENUE AGENT, v. UNITED STATES NURSERY CO

No. 20775

Supreme Court of Mississippi

December 22, 1919

1 TAXATION. Bank taxes on capital stock invested in property taxed valid.

The mere fact that all the capital stock of a corporation operating a plantation and nursery has been invested in real and personal property which has been assessed and subjected to taxation constitutes no bar to a back assessment upon any portion of its capital stock, where the corporation has neither been assessed upon capital stock eo nomine, nor paid taxes upon the value of its capital stock as such.

2 TAXES. Deduction of assessed value in back. Assessing capital stock.

In a proceeding to back assess the capital stock of a corporation the total assessed value of its real and personal property should be deducted from the value of its stock.

3 TAXATION. Presumption as to regularity of assessment.

Both the state revenue agent and the tax assessor are public officers and the general legal presumption that they have regularly and accurately performed their duties must ordinarily be indulged.

4 TAXATION. Presumption of regularity on disapproval by supervisors.

This presumption is not affected because the board of supervisors have disapproved an assessment made by them.

5. TAXATION. Insufficiency of evidence to overcome presumption of regularity of assessment.

In a proceeding to back assess the capital stock of a corporation wherein it appeared that such capital stock had been invested in real and personal property which had already been subjected to taxation, since under Code 1906, section 4267 (Hemingway's Code, section 6901), it was the duty of the corporate officer to furnish information to the assessor so that the value of the stock might be ascertained with some certainty, the court held that the evidence in this case was not sufficient to overcome the prima-facie showing by the taxing officers that they had performed their duty in imposing the assessment under Code 1906, section 4740 (Hemingway's Code, section 7058).

6. SAME.

The court held the evidence in this case sufficient to show the market value of the stock so as to allow a deduction therefrom of the total assessed value of the real and personal property.

7. TAXATION. Disallowance of assessment by supervisors as res judicata.

Where the board of supervisors had disallowed a back assessment of the capital stock of a corporation while sitting in one of the two districts of the county in violation of Laws 1892, chapter 93, section 12, this did not support a plea of res adjudicata in a subsequent back assessment proceeding directed against the same stock at a sitting in the proper district of the county.

HON. W. A. ALCORN, JR., Judge.

APPEAL from the circuit court of Coahoma county, HON. W. A. ALCORN, JR., Judge.

Proceeding by Stokes V. Robertson, State revenue agent, against the United States Nursery Company to bask assess defendant on its capital stock. The board of survivors disallowed the assessment, and on appeal to the circuit court, a peremptory instruction was granted the corporation and the state revenue agent appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and case remanded.

Wells, Robinson & Jones, for appellant.

This court, in the case of Peoples' Warehouse v. Yazoo City, 97 Miss. 500, laid down the rule that the market value of the capital stock, less the value of the real and personal property, was the value of the franchise. So, in the case at bar, our contention is that the market value of the capital stock of appellee is fifty-eight thousand, three hundred and twenty dollars, and after deducting the assessed value of all real and personal property, an untaxed value of capital stock, in excess of forty-six thousand remains and since the court, in the Warehouse Case, supra, this was the value of the franchise element of the capital stock, we adopt this term.

Appellee insists upon section 4267. No vestige of any showing is made that the appellee ever attempted to follow this section, but on the contrary, never, at any time, was any assessment of capital stock, as such, on the assessment roll. Appellant cannot claim double taxation of the capital stock by reason of this additional assessment, since the capital stock was never assessed for the first time on the roll. But, says appellee, the property which was represented by capital stock assessment, was assessed as land and personal property and therefore, you must not hold me literally to section 4267 which requires the assessment to be made against the capital stock.

In the case of Adams v. Bullock, supra, cited by appellee, the appellee in that case carried his capital stock investment on the personal roll in the column called "Capital invested in merchandising and manufacturing." The court said there: "The real question presented for decision is: where property is listed for taxation under the description of 'capital invested in merchandise and manufacturing' can it be said that the value of this franchise is included?"

The court held that the franchise value was not so included; and it follows, therefore, that the assessment of lands and personal property did not, and cannot, in the nature of this case, include the value of the franchise of the United States Nursery Company.

In the Simmons Case, 70 Miss., on page 501 the court said: "It is also evident that taxation of its real and personal property in specie is not taxation of all the various elements of value, for this would exclude in all cases the value of the franchise, etc."

It must follow, therefore, that the appellee is forced to the situation where the argument can no longer be made that the assessment of its real and personal property in specie was a taxation of all its taxable values.

But, says appellee, again admitting that what you say is true, that a franchise is taxable, and that the assessment of all of our property as lands and personal property does not operate as an assessment of capital stock, as required by section 4276, still, you have not separately assessed our franchise, and you must assess the franchise eo nomine under this section, and the Bullock case, supra.

Section 4267 does not require the various elements comprising the cash market value of the capital stock to be assessed eo nomine. The word "franchise" nowhere appears in this section. On the contrary, the statute says: "The capital stock of such company or corporation shall be assessed to it for taxation to the extent of the full amount of the value thereof, etc. . ."

This section does require, and nothing more, that the capital stock shall be assessed at its cash market value, less the assessed value of the real estate. So, in the case at bar, the proper assessment would have been for the year 1910, capital stock, forty-six thousand, six hundred and ten dollars."

The value of capital stock is an aggregate of the various elements of value, among the number being franchise value, and so in assessing the capital stock at its cash market value all of the various elements of taxable value must be included in the assessment of capital stock, and this is exactly what the court meant in the case of Adams v. Bullock, supra.

This phase of the case, in its final analysis, comes down to the proposition already adverted to, viz: Must the franchise be assessed eo nomine, or does the assessment of capital stock, at its cash market value, include every possible value to be assessed?

This matter is not difficult to determine; we submit we have already attempted to show that the very terms of section 4267 contemplate the assessment of capital stock as a whole, and not in its various and varying constituent elements. The divers and sundry elements of value would vary with the different kinds of corporations to be assessed. No assessment roll could be prescribed by which a column could be set apart for the different elements of value of the many kinds of personal property that corporations might own. If the franchise must be assessed by name so would every other item of personal property going to make up the aggregate market value of the capital stock.

We are not limited, however, to our own opinion as to the right to back assess the franchise under the heading of "Additional Assessment of Capital Stock." In the case of Pithiam Land Company v. Johnston, Revenue Agent, decided on April 2, 1917, without a written opinion, and reported in 74 So. page 694, the original record being No. 19018, is found an authority on all-fours with the one now under consideration by the court. The original record in that case shows that the back assessment was made on the assessment roll under heading of "additional assessments of capital stock."

We assert without fear of contradiction, that the Pithian case, which was affirmed by this court, cannot be distinguished from the case at bar. It is argued on page 6 of appellee's brief that the prima-facie correctness of the assessment roll does not arise until the roll has been approved by the board of supervisors. No authority is cited, nor do we think any such authority can be found. The assessor's entry is not a mere clerical entry, as stated by counsel for appellee. In the Tonella case, 70, Miss., the court said the assessor was a judge of value. The act of the assessor is an official act, and it is entitled to prima-facie presumption of correctness. 37 Cyc., 1069-1070-1071.

In the case at bar, the revenue agent took an appeal from the decision of the board of supervisors, and the trial was had de novo, just as though no judgment had been entered by the board of supervisors. The assessment roll therefore must have been prima-facie...