Trorlicht v. Collector of Revenue

• Decision Date: 10 December 1945
• Docket Number: 37831.
• Citation: 24 So.2d 366,209 La. 167
• Court: Louisiana Supreme Court
• Parties: TRORLICHT v. COLLECTOR OF REVENUE.

24 So.2d 366

209 La. 167

TRORLICHT v. COLLECTOR OF REVENUE.

No. 37831.

Supreme Court of Louisiana

December 10, 1945

Appeal from Civil District Court, Parish of Orleans Harold A. Moise, judge.

John B. Smullin, of Baton Rouge, for appellant Department of Revenue.

Monroe & Lemann, of New Orleans (Herold, Cousin & Herold, of Shreveport, of counsel), for appellee.

HAMITER Justice.

The Collector of Revenue of the State of Louisiana is seeking in this cause judicial recognition and approval of an assessed deficiency of $900.15 in the state income taxes of Mrs. Lillian Fabacher Trorlicht for the calendar years 1938 and 1939.

The named tax payer, who is the wife of O. A. Trorlicht and a resident of New Orleans, commenced the instant proceeding by presenting to the State Board of Tax Appeals a petition in which she alleged her receipt of a notice of deficiency in the above amount, disputed the correctness of the claimed indebtedness and prayed that the Board determine that there is no deficiency due by her. Following a regular hearing on that petition, the Board ruled in favor of Mrs. Trorlicht.

Thereafter the Collector of Revenue petitioned the Civil District Court of the Parish of Orleans, in accordance with Sections 19 and 20 of Act No. 299 of 1942, for a review and the annullment of the decision of the Board of Tax Appeals, he praying that there be judgment upholding the deficiency as ascertained by him. The requested review was granted; but the court affirmed the decision of the Board of Tax Appeals having found that no error had been committed. From the judgment, the Collector perfected this appeal.

Necessary to be determined first is the question of whether or not this court has jurisdiction of the appeal. True, no motion has been filed to dismiss this appeal or to transfer it to the Court of Appeal; but, under repeated decisions of this court, we must take notice of our lack of jurisdiction even though no litigant makes an issue of it. Pawnee Land & Lumber Co. v. Guillory, 144 La. 597, 80 So. 890; Dupont v. Harris Ice Cream Co., Inc., 149 La. 729, 90 So. 144; Vogt v. Jannarelli, 195 La. 277, 196 So. 346, and State v. Cook et al., 197 La. 1027, 3 So.2d 114.

Unquestionably, the amount of the taxes in contest ($900.15) is insufficient to bring the case within that provision of Section 10 of Article 7 of the Louisiana Constitution which states that the Supreme Court 'shall have appellate jurisdiction in civil suits where the amount in dispute * * * shall exceed Two Thousand Dollars exclusive of interest * * *.' The only remaining provision of the Constitution that could possibly authorize our entertaining jurisdiction of the appeal appears in the fifth paragraph of the mentioned Section 10 of Article 7 and reads: 'It [Supreme Court] shall have appellate jurisdiction in all cases wherein the constitutionality or legality of any tax * * * levied by the State * * * is contested * * *.' Clearly, the instant case presents no constitutional problems. But does it involve a contest respecting the legality of the income tax levied by the State of Louisiana? (Brackets ours).

Of much assistance in answering this question is the following observation made in the comparatively recent case of State v. Whitehead Motor Co., Inc., 179 La. 710, 154 So. 912, 913:

'It is well settled that this court has appellate jurisdiction over questions of legality, as well as over questions of constitutionality, of any tax claimed by a tax collector as having been levied by the state, or by a municipality, or parish, or other taxing subdivision of the state. And the question of legality of a tax is in contest when a judicial interpretation of the tax statute invoked is necessary to determine whether the tax claimed is due, or when the defendant pleads that there is no statute compelling payment of the tax claimed. State v. Rosenstream, Weiss & Co., 52 La.Ann. 2126, 28 So. 294; State v. Orfila, 116 La. 972, 41 So. 227; State v. Wenar, 118 La. 141, 42 So. 726; Downs, Tax Collector, v. Dunn, 162 La. 747, 111 So. 82; State v. Cedar Grove Refining Co., 178 La. 810, 152 So. 531.'

The doctrine of the Whitehead case was affirmed, and many of its supporting authorities were cited approvingly, in State ex rel. Grosjean, Supervisor of Public Accounts, v. Standard Oil Co. of Louisiana, 182 La. 577, 162 So. 185.

To decide the present cause, obviously, there is no...