Town of Hartland v. Alma C. Otis Damon's Estate

• Decision Date: 06 October 1931
• Citation: 156 A. 518,103 Vt. 519
• Parties: TOWN OF HARTLAND v. ALMA C. OTIS DAMON'S ESTATE
• Court: Vermont Supreme Court

156 A. 518

103 Vt. 519

TOWN OF HARTLAND v. ALMA C. OTIS DAMON'S ESTATE

Supreme Court of Vermont

October 6, 1931

May Term, 1931.

Taxation---Taxation of Estate for Property Omitted by Decedent from Tax List---Acts 1925, No. 21, 13, as amended by Acts 1927, No. 4 1---Classification for Taxation---Constitutional Law---Propriety of Classifying Intangible Property by Itself---Insufficient Briefing---Estate Taxable for Property Omitted by Decedent Though Omission Not Wilful---Statutes---Repeals---Intention of Legislature---Sufficiency of Complaint against Estate To Recover Tax for Property Omitted by Decedent from Tax List---Duty of Taxpayer as to Filing Inventory---Construction of Tax Laws---"Annuity"---"Annuity Contract"---"Interest"---"Dividend"---Payment of Annuity as Distinct from Payment of Interest or Profits---Annuity Contract Exempt from Taxation.

1. Legislature had right to provide, as it did by Acts 1925, No 21, 13, as amended by Acts 1927, No. 14, 1, for pecuniary liability of estate, for decedent's failure to list for taxation taxable intangible property, at rate of 2 per cent per annum on value of all omitted property for five years prior to his death, not including any time prior to statute taking effect; and statute was not invalid because amount estate would thereby be taxed was several times greater than would have been assessed against decedent had he included such property in his list, tax against estate being in nature of penalty, and amount thereof being within legislative discretion.

2. While State may not make palpably arbitrary classification for purposes of taxation, any plan of classification is valid, provided it rests upon some ground or difference having a fair and substantial relation to object of legislation, so that all persons similarly circumstanced shall be treated alike.

3. Statute (Acts of 1925, No. 21, 13, as amended by Acts 1927 No. 14, 1) imposing penalty upon estate for decedent's failure to list taxable intangibles for taxation, held not to be unconstitutional as violative of Vermont Constitution, Ch. 1, Art. 9, relating to proportional contribution for expense of government.

4. Such statute held not to be unconstitutional as violation of Vermont Constitution, Ch. 1, Art. 1, as depriving estate of equal rights and equal protection of its property.

5. Such statute held not to be unconstitutional as denying estate equal protection of law and seeking to take its property without due process of law, in violation of Fourteenth Amendment to Constitution of United States.

6. Intangible property may properly be classified by itself for purposes of taxation.

7. Suggestions in brief, not supported by argument or citation of authority, are regarded as insufficiently briefed, and will be given no attention by Supreme Court.

8. Acts of 1925, No. 21, 13, as amended by Acts 1927, No. 14, 1, imposing penalty on estate for decedent's failure to list taxable intangibles for taxation, held not to require that omission by decedent should have been wilful in order to subject estate to such penalty.

9. Repeals by implication are not favored.

10. Repeal may result when two acts are so far repugnant that they cannot stand together, or when, though not repugnant, later act covers whole subject of former and shows that it was intended as substitute therefor.

11. If there are two statutes upon same subject which are repugnant, later operates as repeal of first so far as repugnancy exists, but no further.

12. Where question is whether later statute is substitute for first, intent of Legislature is material element for consideration.

13. In endeavor to discover Legislature's intention, consideration must be given to whole and every part of act, its subject-matter, effects and consequences, and reason and spirit of law, although meaning so ascertained conflicts with literal sense of words.

14. Where later act of Legislature commences with statement that former act "is amended to read as follows," new provisions have no retroactive effect, and that portion of amended statute which is merely copied without change is not to be considered as repealed and again enacted, but to have been law continuously since time of its original enactment.

15. Amended complaint filed by town to recover statutory penalty from estate for failure of decedent to list taxable intangibles for taxation, held not subject to demurrer for failure to allege sufficient facts to show legal grand list in town for years in question upon which legal tax could have been assessed, since penalty imposed by Acts 1925, No. 21, 13, as amended by Acts 1927, No. 14, 1, is for omission to list property for taxation.

16. Duty to file inventory containing list of all taxable personal estate exists whether grand list, later made up from such inventory, is valid or not.

17. Law for assessment and collection of taxes is to be construed with utmost liberality.

18. To be subjected to tax, property must be such as is ordinarily included in description given in statute, and not such as can be brought within it by process of reasoning only, or by strained construction.

19. "Annuity" defined.

20. "Annuity contract" defined.

21. "Interest" defined.

22. "Dividend" defined.

23. Payment of an annuity is distinct from payment of interest or profits.

24. Annuity contract in face amount of $5,000, providing for payment of $200 semi-annually during natural life of named beneficiary, held to be exempt from taxation under exemption of contracts which "bear non-interest or dividends," under Acts 1925, No. 21, 1, subdiv. VI.

25. Annuity contract, held not taxable under Acts 1925, No. 21, 1, subdiv. II as "Money in the hands of another," or under subdiv. V thereof as "evidence of indebtedness of whatever name or nature not otherwise included in this section," or under subdiv. IX thereof, as "all other moneyed securities of whatever name or nature."

APPEAL IN PROBATE. The selectmen of Town of Hartland, under the provisions of Acts 1925, No. 21, /n 13, as amended by Acts 1927, No. 14, /n 1, presented to the commissioners on Estate of Alma C. Otis Damon, deceased, claim for taxes upon certain intangible property owned by decedent which had been omitted from his tax list. From an allowance of claim at rate of 2% per annum on value of omitted property, the executors appealed to Windsor county court. The executors demurred to the amended complaint of town. Heard by court at December Term, 1930, Windsor County, Sherman, J., presiding. Demurrer was sustained on one ground and overruled as to others. Both parties excepted. The opinion states the case. Defendant's brief contained motion to dismiss upon ground of lack of jurisdiction of commissioners.

Judgment affirmed, and cause remanded, with leave to defendants to apply.

Herbert G. Tupper for the Estate of Alma C. Otis Damon.

Evarts & Perkins and Stickney, Sargent & Chase for Town of Hartland.

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

OPINION

MOULTON

The selectmen of the town of Hartland presented to the commissioners on the estate of Alma C. Otis Damon, deceased, a claim for taxes upon certain intangible property owned by the decedent which had not been set in the grand list, and upon which no taxes had been paid during the years 1926, 1927, and 1928, under the provisions of section 13, No. 21, Acts of 1925, as amended by section 1, No. 14, Acts of 1927. The commissioners allowed the claim at the rate of two per cent. per annum on the value of the omitted property, in accordance with the statute. The executors appealed to the county court, wherein a hearing was had upon their demurrer to the amended complaint filed by the town. The demurrer was sustained upon one specified ground, and overruled as to all the others. Both parties excepted. The demurrer assigned sixteen grounds, but several of them are waived. Others may be considered together.

The statute, as amended, provides that "whenever the selectmen of any town have reason to believe and do believe that upon the property of any decedent taxable in such town under sections one and two 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 such town, claim for the amount of taxes upon such property as has not been set in the grand list and taxes herein assessed thereon have not been 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 one and two of this act upon any part of the estate subject thereto, has not been paid they shall allow such claims at the rate of two per cent per annum on the value of all such omitted property for the period of five years 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."

It is not questioned that the property here involved is taxable under sections one and two of the act, with the exception of certain annuity contracts which are the subject of that ground of the demurrer which was sustained, and which will be considered later.

The first, second, and twelfth grounds of demurrer are briefed together by the defendants, and are, in effect, that the amount of the tax or penalty provided in the statute is excessive, arbitrary, and unreasonable, because it is not fairly equivalent, or approximately equal, to the tax which would have been assessed on the property during the decedent's lifetime, but is five times greater than that.

In Bankers Trust Co. v. Blodgett, 96 Conn 361, 114 A. 104, 106, 107, a statute (G. S. 1918, § 1190) providing that "all...