Town of Brandon v. Erwin M. Harvey, Commissioner of Taxes

• Decision Date: 03 October 1933
• Citation: 168 A. 708,105 Vt. 435
• Parties: TOWN OF BRANDON v. ERWIN M. HARVEY, COMMISSIONER OF TAXES
• Court: Vermont Supreme Court

168 A. 708

105 Vt. 435

TOWN OF BRANDON v. ERWIN M. HARVEY, COMMISSIONER OF TAXES

Supreme Court of Vermont

October 3, 1933

May Term, 1933.

Statutes Construction of---Acts 1931, No. 17, Part I 48--Taxation---Reimbursement to Towns---Manner of Ascertaining Legislative Intent of Statute.

1. Fundamental rule in statutory construction is that intention of Legislature is to be ascertained and given effect.

2. Every part of statute must be considered, and, if possible effect given to every word, clause, and sentence.

3. Where language of statute leaves legislative intent in doubt extrinsic matters, such as history of enactment, may be called in aid.

4. Provision of Acts 1931, No. 17, Part I, 48, for reimbursement of towns, in lieu of intangible tax theretofore paid to town under Acts of 1925, No. 21, in addition to relief of towns from payments to State of State highway tax, State school tax, and special State tax, provided by said Act, held to have for its manifest object refund to each town of whatever loss of income it may have suffered from such change in disposal of intangible tax; and receipts for 1930, last year before Acts of 1931, No. 17, took effect, are standard by which amount of such refund is to be determined.

5. Appropriation made by Acts 1931, No. 17, Part I, 48, for reimbursement of towns for intangible tax theretofore paid to towns, but made payable to State by such Act, was excess of receipts of intangible tax "imposed" and "received" during 1930 over amounts paid to State treasurer during 1930 on account of State highway tax, State school tax, and special State tax, hence did not include arrears of intangible tax from other years, though received in 1930.

6. Legislative intent is to be ascertained not from literal sense of word, but from consideration of whole and every part of statute, its subject-matter, and manifest object.

PETITION for writ of mandamus to compel commissioner of taxes to issue certificate to petitioner for sum of $ 20,486.38, to reimburse town, under provisions of Acts 1931, No. 17, Part I, /n 48. Heard on pleadings and an agreed statement of facts by the Supreme Court for Washington County at the May Term, 1933.

Petition dismissed with costs.

Marvelle C. Webber, Edward S. Marsh, and Christopher A. Webber for the petitioner.

Lawrence C. Jones, Attorney-General, Erwin M. Harvey, commissioner of taxes, and Seymour P. Edgerton (of counsel) for the petitionee.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

MOULTON

This is a petition for a writ of mandamus and has been heard upon an agreed statement of facts. The prayer is that the petitionee, hereinafter called the commissioner of taxes shall be ordered forthwith to issue a certificate to the petitioner, hereinafter called the town, under the provisions of section 48, No. 17, Part I, Acts of 1931 (known as the Income and Franchise Tax Act of 1931) for the sum of $ 20,486.38, which is the amount claimed to be due to it as a reimbursement under this statute.

The section is as follows: " Reimbursement to towns. There is hereby annually appropriated to each city and town a sum equivalent to the excess of the receipts of the tax imposed under the provisions of No. 21 of the Acts of 1925 and amendments thereto and received by said town during the year 1930 in an amount whereby such collection exceeds the amounts paid to the State treasurer during 1930 on account of the State highway tax, the State school tax and the special State tax. Such payments shall be made upon certificate issued by the tax commissioner."

No. 21 of the Acts of 1925 relates to the taxation of intangible property. Section 13 thereof, as amended by section 1, No. 14, Acts of 1927, provides that: "Whenever the listers of any town have reason to believe and do believe that any taxpayer is evading or attempting to evade the provisions of sections 1 and 2 of this act, they shall summon such taxpayer and make such examination as is herein provided and if they find that he has wilfully omitted from his tax inventory any property which should have been included therein under the provisions of sections 1 and 2 of this act, they shall appraise it at its true value in money and set it in the general grand list and the same shall be subject to the general property tax. Listers shall have power to require the production of books, affidavits, papers and documents of all kinds and the appearance of any person in the state to determine the amount of any tax or to determine whether any tax has been evaded or any return falsified.

"Whenever the selectmen of any town have reason to believe and do believe that upon any property of a decedent taxable in such town under sections 1 and 2 of this Act the tax thereunder has not been assessed and paid as provided herein, such selectmen shall present to the commissioners upon such decedent's estate, in the name of the town, claim for the amount of taxes upon such property as have not been set in the grand list and paid and such commissioners, if it appears upon hearing as provided for hearing upon other claims against the estate, that the tax provided under the provisions of sections 1 and 2 of this Act upon any part of the estate subject thereto, has not been paid they shall allow such claim at the rate of two per cent per annum on the value of all such omitted property for the period of five years next prior to the death of such decedent, provided such period shall not be treated as covering any time prior to the date when this Act takes effect. Such claim, if and when allowed, shall be a preferred claim against such estate and subject to priority as taxes * * *."

The town claims to have received, during the year 1930, taxes on intangibles to the amount of $ 24,827.70, and duly made application to the commissioner of taxes for a reimbursement certificate for the excess of this sum over the sum of $ 4,341.32, which it had paid to the State on account of the State school, highway, and special taxes. The commissioner, however, gave a certificate for the reimbursement of $ 9,597.94, disallowing the balance of $ 10,888.44. The certificate was returned to him with a demand for the larger amount. On further refusal, this petition was brought.

The sum disallowed is composed of three items, being $ 9,588 received from the executors of the estate of Charles H. Churchill, $ 1,200 received from the executor of the estate of Susan W. S Holly, and $ 100.44 received from A. J. Holly. The manner in which these sums were respectively paid to and received by the town was as follows: Charles H. Churchill, a resident of Brandon, died January 4, 1930, and his will was admitted to probate. Commissioners were appointed and a time set for the presentation of claims against the estate. Before the time limited for the presentation of claims had expired the town, through its selectmen and treasurer, notified the executors that it had a claim for taxes upon intangible property not set in the grand list by the decedent for several years before his death. A list of intangibles owned by the decedent during this period was furnished by the executors, and the valuation was estimated by the town officials to be, 1926, $ 161,774; 1927, $ 143,440; 1928, $ 143,440; 1929, $ 161,774--in all $ 610,428. A sum equal to two per cent of this total, amounting to $ 12,208.56 was claimed to be due, but since the executors claimed that the valuation was too high, an agreement was reached whereby the executors on or about May 31, 1930, paid to the town $ 9,588 in settlement of the claim, without presentation of it to the commissioners of the estate. A receipted bill was given, which read, "To balance due on account of taxes on intangibles covering the years 1926, 1927, 1928 and 1929 as agreed upon by Board of Selectmen of Brandon and Executors of Estate of Charles H. Churchill." Susan...