201 Ky. 218 | Ky. Ct. App. | 1923
Affirming.
On December 19, 1921, the Commonwealth of Kentucky by its revenue agent, William O. Mays, filed in the Kenton county court a statement against appellee and defendant below, Prank H. Perkins, executor of the last will and testament of William S. Perkins, seeking to assess for state and county taxes for the years 1912 to 1916, both inclusive, certain enumerated intangible personal property claimed to have been owned by the decedent at the assessing dates of each of those years and not assessed by him with any of the authorities having the right to make the assessment. In the first paragraph of the answer to the statement defendant relied on the statute of limitations of five years, and in the. second paragraph he alleged that the property sought to be Assessed by the statement was listed before the commencement of the proceedings with and assessed before the county court “as of September 1,1917. ” A demurrer was filed to both paragraphs of the answer and it appears that the court did not act on it as to the first paragraph, but it was overruled as to the second one. A reply was filed thereto in which it was alleged that the assessment with the county court was not made until October 4, 1921 (two and one half months before filing of the statement), and the court sustained the demurrer filed thereto by defendant, and plaintiff declining to plead further the statement was dismissed. An appeal by the plaintiff to the Kenton circuit court resulted in the same judgment, to reverse which this appeal is prosecuted.
Chapter 11, Acts Special Session, 1917, page 44, made provisions for the assessment and taxation of the character of property here involved, and section 6 of the chapter (now subsection 12 of section 4019a of the 1922 edition of Carroll’s Statutes), enacted that:
“When any money in hand, notes, bonds, accounts, or other credits, secured or unsecured, or shares of stock liable to assessment shall in any one year be omitted from assessment, under the provisions of this act, it may at any time not later than ten (10) years thereafter, be assessed retrospectively in the manner provided by sections 4258 to 4267, Kentucky Statutees, except that in addition to the penalty prescribed by those sections, a penalty of one hundred per cent of the amount of the taxes and interest at six per cent per annum from the time the*220 taxes should have been paid, shall be recovered. Said additional penalty and interest shall be paid into the state treasury.
“Provided, further, that after September 1st, 1917, no action shall be commenced nor proceeding taken on behalf of the state or any county, city, town or taxing district to assess for taxation for any period prior to September 1st, 1917, any personal property described in this section required to be listed for taxation which had theretofore been omitted or which may be claimed to have been omitted, if such property has been so listed for taxation as of September 1st, 1917; nor shall any pending action, prosecution or proceeding be amended so as to include any such personal property listed as of said date.”
Prior to the passage of the statute the right of a revenue agent to assfess retroactively omitted property under the provisions of section 4260 of the 1922 edition of the statutes was barred, under numerous opinions of this court, if not instituted within five years from the time when the right to do so first accrued, and it will be observed that the 1917 statute extended such right to so assess the character of property here involved to ten years if it was omitted from any assessment “under the provisions of this act. ’ ’ Since, however, the court below declined to adjudge whether the ten-year period contained in the 1917 statute was prospective only, or whether it could be given a retroactive effect, we have determined, in view of our conclusions touching the immunity clause of the statute, to also pass that question without deciding it.
Prior to the enactment of the statute, vast amounts of property of the character described were in hiding and withheld from assessment for taxation. As an inducement for the owner to reveal and assess it “as of September 1st, 1917,” without the machinery of the law compelling him to do so, he was granted relief from having it assessed for prior years as omitted property if he did so. The result, as was expected and intended, was a tremendous increase in subsequent assessments of that class of property.
The retroactive assessment made by the executor in this case with the county court on October 4, 1921, while made before a proper assessing authority and prior to the filing of the statement by the revenue agent, and consequently before any legal steps were taken to compel it,
Wherefore, the judgment is affirmed.