107 P.2d 715 | Kan. | 1940
The opinion of the court was delivered by
This was an original proceeding in mandamus brought by the Employers Casualty Company, an insurance company, incorporated under the laws of the state of Texas, against the commissioner of insurance and state treasurer of this state to compel
There is really no dispute concerning material facts. The conceded facts are: Plaintiff is an insurance company and writes casualty and other forms of insurance in this state as well as in the state of Texas, the latter state being its domicile. On February 29, 1940, plaintiff filed with defendant a statement of its condition as of December 31, 1939, as required by G. S. 1935, 40-225, together with a verified statement of the amount of all premiums received from its business in this state for the year ending. December 31, 1939, as required by G. S. 1935, 40-252. At the same time it also tendered payment to defendant of taxes, fees and charges amounting to $2,-797.92, which amount is conceded to be the correct amount under the primary law of this state (G. S. 1935, 40-252). The primary tax on all premiums received in this state during the preceding year is two percent. (G. S. 1935, 40-252 B.) The motion for the writ-disclosed plaintiff had invested more than fifty percent of its entire assets in Texas securities. Under the laws of the state of Texas plaintiff would be required to pay a tax on gross premiums collected in Texas of 3.25 percent unless plaintiff had invested in certain tax securities to the extent of fifty percent of its assets. If plaintiff invested fifty percent of its assets in Texas securities, the rate of taxation on gross premiums collected in Texas was .625 percent or % of one percent. Plaintiff had invested no part of its assets in Kansas securities. Defendant concluded plaintiff, on the basis of the Texas law, was therefore liable to this state for gross premiums received in this state for the year ending December 31, 1939, at the rate of 3.25 percént, or for a total tax in the sum of $4,592.67. That was $1,794.75 more than the primary tax under the laws of this state. In order to obtain a renewal of its certificate of authority to do business in Kansas, plaintiff paid $1,794.75 under protest. That is the amount plaintiff seeks to recover in this proceeding.
Whether plaintiff can prevail depends upon the proper interpretation and application of so-called retaliatory legislation to the particular circumstances of this case. While the provisions of G. S.
"... it may be fairly deduced from the various cases therein cited that the general intent of retaliatory statutes is to level the amount of taxes and fees that must be paid and to insure substantial equality.” (p. 778.)
In order to effectuate that intent and purpose the particular or peculiar circumstances of each case must, of course, be considered and appraised in keeping, not only with the letter, but the spirit of the law.
Our so-called retaliatory statute, G. S. 1935, 40-253, provides:
“Whenever the existing or future laws of any other state or country shall require from insurance companies or fraternal benefit societies organized under the laws of this state, or of the agents thereof, applying to do business in such other state or country, any deposit of securities in such state or country for the protection of policyholders therein, or otherwise, or any payment for taxes, fines, penalties, certificates of authority, licenses, fees, compensation for examination, or otherwise, greater than the,amount required for such purpose from insurance companies of other states by the then existing laws of this state, then, and in every case, all companies of any such state or country, doing business in this state shall make the same deposit, for a like purpose, with the commissioner of insurance of this state, and pay to the commissioner of insurance for taxes, fines, penalties, certificates of authority, licenses, fees, compensation for examination, or otherwise, an amount equal to the amount of such charges and payments imposed by the laws of such other state or country upon the companies of this state and the agents thereof.”
As previously stated, it is conceded the total tax under the primary statute of this state (G. S. 1935, 40-252) was properly assessed at $2,797.92. Now what amount in taxes, fees, charges, etc., would a Kansas company, similar to the Texas company, be required to pay to the state of Texas, if it operated in that state under the same conditions that the Texas company operated in Kansas, that is,
With that contention plaintiff does not agree. It argues Kansas should exact the same total in taxes, fees, charges, etc., from it as a Kansas company would be required to pay in Texas if the Kansas company had fifty percent of its assets invested in Texas securities. It is conceded if plaintiff’s theory is correct it would be required, under the Texas law, to pay only .625 percent (5/8 of 1 percent) of the gross premiums received by it in Kansas, or $1,098.56. Plaintiff contends since that amount is less than the sum of $2,797.92, exacted under our primary laws, the Kansas retaliatory statute does not become operative. The trouble with, that contention is it ignores the all-important fact that a Kansas company operating in Texas would have, and that plaintiff now has, the benefit of the low rate in Texas only by reason of the fact that it has fifty percent of its assets invested in Texas securities. True, if a Kansas company operating in Texas, had fifty percent of its assets invested in Texas securities, it would be entitled, under the Texas law, to the same low rate there accorded to .a Texas company, which had fifty percent of its assets invested in Texas securities. If, however, the Kansas company did not have fifty percent of its assets invested in Texas securities, it would be required to pay the higher rate of 3.25 percent under the Texas law, which is the exact rate upon which defendant assessed the plaintiff company. It is therefore apparent that whatever the theory of approach may be the total tax is that assessed by de
Plaintiff frankly concedes diligent search has revealed no authorities directly in point, but contends the following cases are persuasive as to the soundness of its position: Occidental Life Ins. Co. v. Holmes, 107 Mont. 48, 80 P. 2d 383; State, ex rel., v. Continental Ins. Co., 67 Ind. App. 536; State v. American Ins. Co., 79 Ind. App. 88. Defendant does not agree with the conclusions plaintiff draws from those decisions (which may be found in Annotation 91 A. L. R. 795), nor that the last two cases cited by plaintiff represent the majority view. He contends the Montana case, in principle, supports his position that he had the right to take into account the fact that plaintiff had invested no part of its assets in Kansas. Defendant further contends Bankers Life Co. v. Richardson, 192 Cal. 113, 218 Pac. 586, and Cochrane v. Bankers’ Life Co., 30 F. 2d 918, support his position. We need not dwell upon the cases cited by either of the parties. It is sufficient to say they do not contain anything which leads us to doubt the correctness or fairness of the conclusion we have reached. The motion for the writ is denied.