139 Ky. 138 | Ky. Ct. App. | 1910
Opinion of the Court by
Reversing.
Morris S. Greenbaum is tbe owner and proprietor of a distillery and bonded warehouse in Woodford county, Ky. All of the whisky stored in the warehouse on the assessment' dates beginning with September, 1901, and running consecutively up to-and including the assessment of September, 1907, together with the warehouse, was destroyed by fire on August 5, 1908. There was stored in the warehouse about 44,000 barrels of whisky. Of this quantity, about 4,000 barrels belonged to the distiller himself. The remaining 40,000 barrels were owned, it is claimed, by nonresidents of the state and by parties whose names were unknown to appellee. The whisky stored in the warehouse on the assessment days was reported by appellee to the Auditor, as required by section 4105, Ky. St., for the years in question, and was assessed against appellee. This action was instituted by the commonwealth of Kentucky, on the relation of the sheriff of Woodford county, to recover of appellee the taxes assessed against appellee on the whisky in question, together with the penalty and interest prescribed by law. The lower court gave judgment in 'favor of the commonwealth for the taxes due on the whisky actually owned by appellee, but relieved him from the payment of taxes on all whisky for the years in question which he did not personally own at the time of the fire. From this judgment the commonwealth appeals.
The sections of the statute regulating the taxation of whisky in bonded warehouses, necessary to be considered, are as follows:
*140 “Section 4105. Every owner or proprietor of a ‘distillery bonded warehouse in which distilled spirits áre stored shall, between the first day of September and the first day of October of each year, report to the Auditor of Public Accounts, in writing, sworn to by the person making the report; or, if the owner or proprietor of such warehouse be a corporation, the report shall be made and sworn to by its principal officer or manager in charge. Such report shall show the quantity and kind of spirits in such warehouse on the first day of September in the year the statement is required to be made, the dates when made, the county, city, town, or taxing district in which the warehouse is situated; whether or not the United States government tax has been paid thereon, if not, the date of the expiration of the bonded period; the fair cash value of the spirits estimated at the price it would bring at a fair voluntary sale, and such other facts pertaining to such spirits as the Auditor may require.”
‘ ‘ Section 4109. Any person or corporation having the custody of such spirits on the first day of Sep1 ember in the year "the assessment is made shall be liable for all taxes due thereon, together with all in-’ ierest and penalties which may accrue; and any warehouseman or custodian of such spirits, who shall pay the taxes, interest or penalties on such spirits, shall have a lien thereon for the amount so paid, with legal interest from day of payment.”
“Section 4110. Taxes on distilled spirits which may be assessed while, in a bonded warehouse, and on which the United States government tax has not been paid, or will not become due before the first day of March after the assessment, shall be due on the second day of January, May and September next*141 after the said government tax becomes dne or be paid, or when the spirits are removed from the warehouse; and the'taxes on each year’s assessment shall bear legal interest until paid.”
“Section 4111. Every owner or proprietor of a bonded warehouse in which distilled spirits may be stored, as contemplated in the preceding section, shall, on the first day of January, May and September next after said government tax shall have been paid, become due, or be removed from the warehouse, make and transmit to the Auditor of Public Accounts and the clerk of the county court in which the spirits may have been at the time of the assessment, a statement sworn to by the person whose duty it is to make the report, showing the quantity of spirits on which the government tax has been paid or has become due, and what spirits have been removed from the warehouse during the preceding four months, the years in which such spirits were assessed for taxation, and the county, city, town, or taxing district in which the warehouse is situated in which the spirits were stored at the time of the assessment, and shall, at the same time, pay all taxes and interests on such spirits due the state, county, taxing district, city or town, to the officers entitled to receive the same. The report herein required shall be made by the owner or proprietor of such bonded warehouse, whether any spirits are stored in such warehouse, or not at the time the report is due.”
The contention of the commonwealth on this appeal is that the warehouseman is made primarily responsible for the tax on whisky stored in his warehouse, and that he is liable therefor even though the whisky may have been destroyed. On the other hand, appellee contends that the statute in question makes
Thus it will be seen that the imposition and the collection of the tax from the warehouseman is purely a question of power, and does not depend upon whether or not the Legislature has seen fit to provide against every contingency which might result in the warehouseman’s failure to collect the tax. Furthermore, when the distiller manufactures and stores the whisky and issues warehouse receipts to his purchasers, he does so knowing that the only
The cases of City of Boston v. Beal (C. C.) 51 Fed. 306, and Stapylton v. Thaggard, 91 Fed. 93, 33 C. C. A. 353, do not in our opinion support appellee’s contention that he has been released from all liability for the taxes in question by reason of the fact that he can no longer enforce his lien. In those cases cer
Nor is the case of Knoxville Traction Co. v. McMillen, 111 Tenn. 521, 77 S. W. 665, 65 L. R. A. 296, similar to the case under consideration. There the legislature of the state of Tennessee imposed a. tax of $100 upon persons conducting the business of advertising in street cars, and providing that the street car company or railway company which leased or sold such advertising privileges should be liable for the payment of the tax. The court held that the only relation of the two companies was that of creditor and debtor, and that the property of one citizen could no more be taken to pay a tax or public debt due from another than the private debt of such other person.
For the reasons given, we conclude that the trial court erred in holding that appellee was not liable for taxes on whisky other than that which he individually owned. We conclude that the 8 per cent, penalty imposed by section 4112, Ky. St., must be calculated
Judgment reversed and cause remanded, with directions to enter judgment in conformity with this opinion.