145 So. 649 | Ala. | 1933
Bill filed by appellee, Kelly, tax collector, to enforce a lien given him by section 377 of the Revenue Code of 1929 for taxes he had failed to collect from the McCreary-Alford Company, a corporation, and which was charged against him on final settlement with the state and which he was forced to pay. This section was considered in the case of Wilkins v. Folsom,
The appellant's main point, as presented by brief, is that the corporation was not liable for any tax except upon the real and personal property owned by it and not for the stock of the individuals who were personally liable for the tax and there was no legal duty upon the corporation to pay same — that section 26 of the Revenue Code requires the stock to be assessed against the stockholders and he shall be liable for the tax, and notwithstanding said section provides that the corporation "shall pay for the shareholders the tax assessed against his shares, and the amount so paid for any shareholder shall be a lien on any interest which such shareholder may have in any property owned by the corporation," that this is intended as a mere matter of convenience and fixed no legal liability on the corporation for the tax on the stock. This question might be involved had the corporation assessed the stock to the shareholders and complied with section 26 as to the listing of same, etc., as there required, though we do not mean to hold that the corporation would not be liable even if this had been done. This question may be pretermitted for the reason that the corporation did not comply with or avail itself of section 26 in the assessment of the stock, but omitted to furnish a list of the shareholders and availed itself of section 29 which permits the omission of the stockholders in the event the corporation agrees to pay the tax, and which was done in the assessment. Therefore, the corporation became primarily liable for the tax both as to the stock as well as the property.
It is next urged that the trial court erred in holding that the complainant had a lien superior to Brantley's mortgage — that while section 377 of the Revenue Code gave the tax collector a lien, it does not expressly make it superior to other liens. We think it was the purpose of this provision to place the tax collector, who had been forced to pay this tax, in the shoes of the state as to right and remedy. He no doubt had the right to an equitable subrogation. Wilson v. White,
It is next insisted that the property of the corporation was sold for taxes in the year 1931 and that this mortgagee, Brantley, became the purchaser and this sale had the effect of wiping out all previous tax liens. Reliance for this is based upon the cases of Thorington v. City Council of Montgomery,
We do not think the trial court erred in not holding that this complainant was estopped from asserting his lien because of his failure to collect the tax out of the stockholders. The corporation had not listed the stockholders as provided by section 26 of the Revenue Code, but assumed the payment of the tax under section 29 and thereby became primarily liable for same and the liability of the stockholders was only secondary, if at all, a point we need not decide.
The decree of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.