State Tax Commission v. Mississippi Power Co
Decision Date | 22 April 1935 |
Docket Number | 31657 |
Citation | 160 So. 907,172 Miss. 659 |
Court | Mississippi Supreme Court |
Parties | STATE TAX COMMISSION v. MISSISSIPPI POWER CO |
APPEAL from chancery court of Hinds county HON. V. J. STRICKER Chancellor.
Petition by the Mississippi Power Company to vacate an assessment for income taxes made by the State Tax Commission. From a decree for petitioner, the Commission appeals. Affirmed.
Affirmed.
J. A. Lauderdale, Assistant Attorney-General, for appellant.
Section 5031, Code of 1930, is exactly the same as Section 8, Chapter 132, Laws of 1924, except the phrase "that a taxpayer having a fiscal year beginning in 1929 and ending in 1930" in paragraph (d), Section 5031, Code of 1930 reads, "that a taxpayer having a fiscal year beginning in 1923 and ending in 1924," in said Section 8, Chapter 132, Laws of 1924.
According to the agreed statement of facts in the record, the appellee incurred certain losses in 1928 and 1929. It had a certain net income for the year 1930 and 1931. It construed said Section 5031 so, as to authorize it to deduct said losses from said income; while on the other hand, the State Tax Commission contended that even though said losses were incurred as contended by appellee said statute prevented it from allowing the appellee to deduct said losses from its said income.
The decree of the lower court should be reversed and the petition dismissed.
Crowe v. Cartledge, 99 Miss. 281; McCulloch v. Maryland, 4 Wheat. 316; State Tax on Foreign-Helf Bonds, 15 Wall. (U. S.) 300; Scott v. Reid, 10 Pet. 524; 1 Sutherland on Statutory Construction (2 Ed.), section 85; Story's Conflict of Laws, page 17; Frantz v. Dobson, 64 Miss. 631; Satterlee v. Matthewson, 2 Pet. 380; Charles River Bridge Co. v. Warren Bridge Co., 11 Pet. 420, 582; Breen v. Biddle, 8 Wheat. 1, 89; Bronson's Case, 1 How. 311, 315; Long Island Water Supply Co. v. City of Brooklyn, 166 U.S. 685; Baltimore & Susquehanna R. Co. v. Nesbit, 10 How. 395; Watson v. Mercer, 8 Pet. 88; Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 5 Cranch, 138; Ogden v. Saunders, 12 Wheat. 266.
Eaton & Eaton, of Gulfport, for appellee.
Exactly that same plan was re-enacted in the Code of 1930 when Chapter 132 of the Laws of 1924 was reenacted as Chapter 124 of the Code. There is no material difference in Chapter 132 and Chapter 124. The only differences are of dates, and these differences are evidently due to the fact that since the Code was adopted in 1930 it was felt advisable to revise the dates of Chapter 132 to make them conform to the date of adoption, but without change in the meaning of application.
The theory of repeal practically applied would create as great a discrimination against the calendar year taxpayer as he seeks to avoid with respect to the fiscal year taxpayer. For example, Paragraph (d), Section 5031 permits a fiscal year taxpayer whose year ends during 1930 to avail himself of losses sustained during his fiscal year--that is, sustained during some part of 1929--but the calendar year taxpayer, under the provisions of Section 5031 relating to him, could not avail himself of any losses sustained in 1929, for losses must be confined to his calendar year--that is, 1930. A construction which leads to the imposition of one discrimination to avoid another must be unsound.
It is equally unsound to demand that judicial construction by taking away a privilege of one group in an effort to equalize their respective tax obligations, must be relied on to prevent discrimination.
When a statute expressly repeals another, yet contains in it a provision of the former statute identical in language--as in the case now before us--or even identical in substance, it cannot be said that as to that provision there has been any repeal.
Anding v. Levy, 57 Miss. 51; State v. Hill, 70 Miss. 106; Abbay v. Board of Levee Commissioners, 83 Miss. 102; McDonald v. State Tax Commission, 130 So. 473; Wilkerson v. Hudson, 71 Miss. 130; Lemonius v. Mayer, 71 Miss. 514; Goodman v. Loan Association, 71 Miss. 310; Miller v. I. C. R. R. Co., 111 So. 558; Town of Utica v. State, 148 So. 635.
Assuredly, if doubts are to be resolved in favor of the taxpayer, the positive plain mandate of the law under Section 4 that accruing or accrued rights are to be preserved in the event of a repeal must be observed.
With all deference we submit that to deprive appellee now of this right would be to deny it the equal protection of the laws and to take its property without due process contrary to the 14th Amendment to the Constitution of the United States.
Pritchard v. Norton, 27 L.Ed. 104, 106 U.S. 124; Danzer & Co. v. G. & S. I. R. R. Co., 69 L.Ed. 1126; Gibbes v. Zimmerman, 78. L.Ed. 342.
Appellee filed its petition in the chancery court of Hinds county against appellant under the provisions of section 5057, Code 1930, praying that an assessment made against it by appellant for income taxes for the years 1930 and 1931 be vacated and set aside. The prayer of the petition was granted. From that decree appellant prosecutes this appeal.
The cause was tried on agreed facts, as follows:
Paragraphs (b), (c), (d), and (e) of section 8, and paragraphs (b), (c), and (d) of section 10 of the income tax statute, chapter 132, Laws 1924, are as follows:
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