State v. New York Life Ins. Co.

• Decision Date: 10 July 1939
• Docket Number: No. 4-5557.,4-5557.
• Parties: STATE ex rel. HOLT, Atty. Gen., v. NEW YORK LIFE INS. CO.
• Court: Arkansas Supreme Court

131 S.W.2d 639

STATE ex rel. HOLT, Atty. Gen., v. NEW YORK LIFE INS. CO.

No. 4-5557.

Supreme Court of Arkansas.

July 10, 1939.

Rehearing Denied October 2, 1939.

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor.

Suit by the State, on the relation of Jack Holt, Attorney General, against the New York Life Insurance Company for

back taxes on annuity insurance premiums. From a decree of dismissal, relator appeals.

Affirmed.

Jack Holt, Atty. Gen., and A. D. DuLaney and Lee Cazort, both of Little Rock, for appellant.

Rose, Loughborough, Dobyns & House, of Little Rock, for appellee.

FRANK G. SMITH, Justice.

This case, a precursor of others of similar purpose, was filed July 5, 1938, under the authority and direction of Section 7968, Pope's Digest, which provides that "If it should be found, upon investigation made by the Attorney General or the Arkansas Tax Commission, that any life, fire or accident insurance company doing business in this State has for any year or years failed, for any cause, to pay all the tax due by it, suit for such unpaid taxes shall at once be brought by the Attorney General against any such company owing such taxes. * * *."

The question here presented for our decision is stated to be: "Is the appellee (Life Insurance Company) liable for (back) taxes on premiums received for Annuity Insurance Policies under Section 7965 of Pope's Digest, which requires that `Every life * * * insurance company * * * doing business in this State, shall file with the Auditor or Insurance Commissioner at the same time it makes its annual statement, a sworn statement of its gross premium receipts in this State for the year ending the 31st day of December next preceding, and on such gross receipts each of said companies shall pay into the State Treasurer on or before the first day of March of each year, a tax of two and one-half per cent. * * *.'"

It was alleged that appellee is a foreign life insurance corporation engaged in the business of writing life and health insurance, and issuing various kinds of annuity insurance policies, for which it collected premiums. The Company was required to make and file with the Insurance Commissioner an annual sworn statement of its gross premium receipts on all business done in this State, and to pay to the Treasurer of the State each year to and including 1930 a tax of two per cent., and from 1931 to pay a tax of two and one-half per cent. on such gross receipts for the privilege of doing business in this State.

Appellee has not reported, in its sworn annual tax statements to the Insurance Commissioner, the premiums received by it on annuity policies of insurance. The amount so collected for the year 1925 and each subsequent year is stated.

An answer was filed, denying liability for the taxes on various grounds, only two of which will be considered.

The first is whether the Insurance Company is liable for the tax. Upon this question exhaustive research is manifested in the briefs of opposing counsel.

The earliest cases on the subject construing statutes similar to our own statute, above quoted, are Commonwealth v. Metropolitan Life Ins. Co., 254 Pa. 510, 98 A. 1072, and People ex rel. Metropolitan Life Insurance Co. v. Knapp, 231 N.Y. 630, 132 N.E. 916, in each of which cases it was held that a tax against a foreign insurance company, on the consideration received for granting annuities, was not subject to the tax imposed upon insurance premiums. The first of these cases was decided July 1, 1916, the last by the Court of Appeals of New York, July 14, 1921.

It appears that, upon the authority of those two cases, the Insurance Commissioner of this, and of all the other States, assumed that premiums or sums paid for annuity insurance were not taxable as insurance premiums, and the insurance companies were not required by the Insurance Commissioners of the respective states, in which the various companies were authorized to do business, to report premiums collected for annuity insurance for purposes of computing the tax due on insurance premiums collected.

There are other cases to the same effect, which we shall not review. But the cases on the subject are not harmonious. Indeed, the New York case, above cited, which is treated as one of the leading cases on the subject, affirmed, in a per curiam opinion, from which two of the justices dissented, the opinion of the Supreme Court, Appellate Division (193 App. Div. 413, 184 N.Y.S. 345), from which two of the justices had also dissented.

These two cases are reviewed at length by the Supreme Court of Iowa in the case of Northwestern Mutual Life Ins. Co. v. Murphy, Commissioner, 223 Iowa 333, 271 N.W. 899, 109 A.L.R. 1054, in which a statute similar to our own was construed. In an opinion, which was unanimous, the Supreme Court of Iowa declined to follow the New York and Pennsylvania cases, and held (to quote a headnote): "1. The consideration received by an insurance company for its undertakings to pay annuities is properly included in the amount upon which the company is liable to a tax imposed by a statute requiring every foreign insurance company to pay annually into the state treasury as taxes a stated percentage `of the gross amount of premiums received by it for business done in this State, including all insurance upon property situated in this State and upon the lives of persons resident in this State during the preceding year.'"

Numerous cases are cited in the briefs, and it is said — and may be true — that the weight of authority sustains the view of the Pennsylvania and New York courts. But the decisions of the Supreme Court of New Hampshire in the case of New York Life Ins. Co. v. Sullivan, 89 N.H. 21, 192 A. 297, and of the Supreme Court of Massachusetts in the case of Mutual Benefit Life Ins. Co. v. Commonwealth, 227 Mass. 63, 116 N.E. 469, accord with the view which we adopt. Expert witnesses called by the insurance companies differentiated annuity and other insurance, but the fact remains, in our opinion, that it is insurance, and that money paid for annuity insurance must be regarded as premiums paid for insurance.

We are much persuaded in reaching this conclusion by the extensive discussion of the subject by Professor Huebner, Professor of Insurance and Commerce in Wharton School of Finance and Commerce, University of Pennsylvania, and President of the American College of Life Underwriters, in his textbook on Life Insurance. He devotes an entire chapter to the subject of Annuities, and differentiates the various types of annuities. We accept the view of Professor Huebner, rather than that of judges, who, like ourselves, have only occasional contacts with the subject. He says, at page 154 of the chapter on Annuities (3rd Ed.): "Many believe that the growth of the annuity business will be the outstanding feature in the life-insurance business during the next quarter of a century. * * *. The purpose of the annuity, it is seen, is to protect against a hazard — the outliving of one's income — which is just the opposite of that confronting a person who desires life insurance as protection against the loss of income through premature death. Technically, however, the two types of contracts are closely related to each other, since the cost of both is computed on the basis of similar data and principles. Sight should not be lost of the fact that annuities are simply another important means of insurance."

We conclude, therefore, that sums of money paid for annuity insurance, which all the witnesses refer to as premiums, are taxable under the statute hereinabove quoted.

It does not follow, however, that the State should recover in this action. It will be remembered that this is not a suit for current premiums. It is a back tax suit. The court below found there could be no recovery in this case, but the decree does not recite the ground upon which that relief was denied. In our opinion, there can be no recovery, because of the provisions of Section 13899, Pope's Digest, which reads as follows: "After the assessment and full payment of any general property, privilege or excise tax, no proceedings shall hereafter be brought or maintained for the reassessment of the value on which such tax is based, except for actual fraud of the taxpayer, provided that failure to assess taxes as required by law shall be prima facie evidence of fraud."

It will be observed that the inhibitions of this statute are not directed against suits for the collection of the general or ad valorem taxes alone. It applies also to suits for the collection of privilege and excise taxes. In the case of State ex rel. Attorney General v. New York Life Ins. Co., 119 Ark. 314, 171 S.W. 871, 173 S. W. 1099, it was held that premium taxes are excise and privilege taxes. See, also, Hixon v. School District of Marion, 187 Ark. 554, 60 S.W.2d 1027; Sparling v. Refunding Board, 189 Ark. 189, 71 S.W.2d 182; Thompson v. Wiseman, 189 Ark. 852, 75 S.W.2d 393.

It appears that, prior to 1927, there were no restrictions on the institution of suits to collect back taxes; but in that year the General Assembly passed Act No. 129, of which Section 2038, Pope's Digest is a part, requiring that the Tax Commission first authorize such suits. This act was upheld in the case of State ex rel. Attorney General v. Standard Oil Co. of La., 179 Ark. 280, 16 S.W.2d 581.

In 1929 the General Assembly passed Act No. 174, p. 876, prescribing a limitation of five years on suits for back taxes on tangible property, and a limitation of seven years on suits for back taxes on intangible property.

This right to sue for back...