State Ex Rel. Pettigrew v. Thompson

• Decision Date: 02 December 1948
• Citation: 63 A.2d 154,135 Conn. 228
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. PETTIGREW v. THOMPSON, Tax Collector.

135 Conn. 228

63 A.2d 154

STATE ex rel. PETTIGREW

v.THOMPSON, Tax Collector.

Supreme Court of Errors of Connecticut.

Dec. 2, 1948.

Appeal from Superior Court, Hartford County; Inglis, Judge.

Mandamus proceeding brought to Superior Court by the State on the relation of Robert S. Pettigrew, against Arthur R. Thompson, Tax Collector for the Town of West Hartford, Hartford County, to compel defendant to certify that plaintiff is entitled to a tax refund.From a judgment rendered for plaintiff when defendant failed to plead further when motion to quash alternative writ was denied, defendant appeals.

Error and case remanded with direction.

Albert S. Bill, and Harrison D. Schofield, both of Hartford, for appellant.

William S. Gordon, Jr., and Mary C. Fitzgerald, both of Hartford, for appellee.

Frank W. Flood, Asst. Atty. Gen., and William L. Hadden, Atty. Gen., as amicus curiae.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

MALTBIE, Chief Justice.

On this appeal by the defendant from the rendition of a judgment in the nature of a mandamus, the issue is whether the relator, hereinafter called the plaintiff, a veteran, is entitled to a refund, representing an exemption from taxation, of a part of a tax he paid by reason of the assumption of it on a purchase of real estate.He made his claim under § 281h of the 1945 Supplement to the General Statutes, which reads: ‘When any person, at the time he acquires equity in real estate, expressly assumes the payment of taxes which are to become payable thereafter, he shall become liable for the payment thereof to the same extent and in the same manner as though such real estate were assessed in his name.’

The appeal is taken from a judgment rendered after a motion to quash the alternative writ was denied and the defendant failed to plead further.A motion to quash in a mandamus proceeding is the equivalent of a demurrer in an ordinary action and admits the facts well pleaded in the alternative writ.State ex rel. Campo v. Osborn, 126 Conn. 214, 215, 10 A.2d 687.The admitted facts are: The plaintiff served in the navy of the United States from August 18, 1942, until January 7, 1946, when he was honorably discharged.On or about March 1, 1946, he purchased certain real estate in West Hartford.In the deed he assumed the taxes assessed against the property on the list of October, 1945, which became payable on May 1, 1946.On or about April 20, 1946, he exhibited to the town clerk of West Hartford his honorable discharge and it was recorded in the records of such discharges in the town clerk's office.On or about May 31, 1946, he paid in full the taxes assessed against the property on the list of 1945; he received no credit for an exemption he claimed as a veteran; and he paid the full amount under protest.On or about November 23, 1946, under the provisions of § 400c of the Cumulative Supplement of 1935, he claimed from the defendant tax collector a refund of the portion of the tax which, had the exemption been allowed, he would not have had to pay, but his demand was refused.In this action he seeks an order that the tax collector certify to the proper officers that he is entitled to a refund in that amount.

Section 1163(19), as amended by§ 158f of the 1941 Supplement, grants, subject to the provisions of §§ 1166and1171, an exemption from taxation of property to the amount of $1000 belonging to or held in trust for any resident of this state who has served in the army, navy, marine corps or coast guard of the United States in time of war and received an honorable discharge therefrom or who is serving in these forces.Section 1166 contains a provision that any person entitled to two or more exemptions to veterans shall not receive more than one exemption.Section 1168 requires that any person, to have the benefit of the exemption, shall give notice to the town clerk of the town where he resides and shall exhibit to the town clerk an honorable discharge or a certified copy of it or, in default of it, shall appear before the assessors for examination under oath and present two supporting affidavits of disinterested persons.Section 1171 provides that no person shall receive any exemption under these statutes until he has proved his right to it in accordance with the provisions of § 1168, and further that exemptions so proved shall take effect ‘on the next succeeding assessment day,’ with a proviso that if the right is proved on that day or within the period thereafter allowed for filing assessment lists it shall take effect on that assessment day.Because § 158f makes the grant of the exemption subject to the provisions of § 1171, and the latter requires proof in accordance with § 1168, no person can receive a grant under § 158f until he has proved his right to it in accordance with § 1168.Section 400c of the Cumulative Supplement of 1935 states that any person ‘who has been unable to receive’ the exemption provided in the various statutes granting exemptions to veterans, including § 1163(19), ‘within the time limited by section 1171’ may, if he has proved his right in accordance with §§ 1168and1169‘within one year after the time so limited by said section 1171,’ make application to the collector of taxes for abatement in case the tax has not been paid or a refund of an amount representing the exemption if it has been paid; and the statute goes on to provide the method by which the right to such relief shall be proved and the claim satisfied.The plaintiff bases his claim for a refund upon the provisions of § 400c.

The determinative question is this: Where one would have been entitled to a tax exemption as regards property he owned on the assessment date, can he claim a like exemption as against his liability under § 281h to pay taxes on property he bought subsequent to that date?The answer to that question depends upon the intent of the General Assembly in enacting § 281h, as expressed in the language it has used.The federal income tax law provides that taxes ‘paid or accrued’ are deductible from gross income.52 Stat. 460,26 U.S.C. § 23(c)(1),26 U.S.C.A. § 23(c)(1).In December, 1942, the Supreme Court of the United States held that this deduction was allowable only to a person upon whom the tax was imposed.Magruder v. Supplee, 316 U.S. 394, 396, 62 S.Ct. 1162, 86 L.Ed. 1555.The statute in question before us originated in a bill offered on January 31, 1945, in the house of representatives of the General Assembly at its session in that year.The joint rules of the Assembly required that every bill should be accompanied by a statement of its purpose, and the bill in question as originally offered had below the text of the proposed law the following: ‘Statement of Purpose: To permit the person owning real estate and paying the taxes thereon to obtain a proper deduction for income tax purposes even though the property was not assessed in his name.’In substance this purpose was stated in the journal of the house...