*1 testimony convincing the clear to counteract admissible his The diligence after arrest. blood handling appellant’s for use affidavit at the evidence in producing the appellant opinion. in this been considered already trial has remaining assignments appellant’s We have considered find no merit in them. error trial court is affirmed. judgment
All the concur. Justices al., WARTENHORST, Appellant et RE ESTATE OF
IN al., STATE, Respondents et 705) N.W.2d (211 (File 31, 1973) Opinion No. filed 11063. October *2 Falls, Hamilton, Simons, A. Claude Blaine Sioux for plaintiff and appellant. Gen., Dewell, Gordon Mydland, Atty. Atty. Asst. John
Gen., Pierre, for defendants and respondents. WINANS, (on reassignment). Justice Wartenhorst, The deceased, executor of the estate of Peter instituted this to obtain a refund of inheritance proceeding state taxes him alleged by to have been erroneously paid. and,
The facts brief, have been are stipulated in as follows: 11, On or about an 1970 inheritance tax September report inventory the matter of the estate of Peter Wartenhorst was filed with the South Dakota of Department Revenue and on 15, September 1970 the State of South Dakota entered into a stipulation with the estate as to the аmount of inheritance tax due, based upon valuation of the estate and claims shown in the The report. 6, on stipulation was October 1970 approved by the court and of the tax was made on same day. 11,
On December of proof against claim the estate in $10,550.82 the amount of was presented to the court and allowed $6,000. amount of This claim was unknown to the executor at the time the stipulation was entered into and was not taken into account in the of determination the inheritance tax. On 1971 the executor of the made application June of Deрartment Revenue for a refund of which was $720 denied on August 1971. bona fides of the claim filed and state, allowed is not disputed by the disputed nor is it that filed, claim was timely was unknown to the and had executor been taken into account in the determination of the inheritance tax.
The settled record further discloses that from adverse determination disallowing by claim for a refund the Depart- ment of Revenue the estate petitioned for a review the judicial by circuit court and review, “that the said Order of the Department of Revenue be vacated and petition for refund be 15, court on October was tried to the The matter
granted.” of fact findings consisting made its decision trial and the Revenue in favor the Commissioner law and conclusions of entered on Dakota and judgment State of South 1, 1971, follows: pertinent part reading December Order AND “ORDERED ADJUDGED of South Revenue of the State the Commissioner of said Dakota, denying to the dated August deceased, re- Wartenhorst, its claim for Estate Peter it, is affirmed hereby fund inheritance hereby said estate is and the for refund application *3 denied.” judgment
From this the appeals. in this that the It is from the settled record case basis рatent order the refund the of Revenue Department for the denying of the circuit court review of such judgment is the in this in in the case of Security order court 1928 holding Twinde, Bank and the National S.D. N.W. General the State South Dakota Attorney of of opinion AGR, It is our that the opinion found 1939-1940 389. p. Twinde, facts in are from the facts here supra, distinguishable law and that the sections of involved in this court’s in opinion are from of law distinguishable Twinde likewise the sections in bar. stock of the involved the case at In Twinde capital was listed whereas it have been bank as should personal propеrty, capital listed as and credits. As moneys personal property was taxed much it would have been taxed as higher stock than moneys credits.
The law of real and refunding personal with respect taxes, taxes, the time from inheritance at distinguished Twinde found in Sections 6813 and 6826 the Code 1919. 10-18-1, Section 6813 of the 1919 Code is the source of SDCL now, situations, which different as it does where provides six refunded the Board of taxes abated or the if paid, The or refund County Commissioners. fifth reason for abatement is: When taxes have been or error
“(5) erroneously paid
made in noting there- payment issuing receipt for;” amended,
Section 6826 of the Code of is the source of SDCL 10-27-2 and is referred generally protest to as the statute. difference,
The bank to have a refund sought claiming it erroneously paid the in Twinde higher tax. said:
“Was the tax so as to be recover- ‘erroneously paid’ able under the provisions of subdivision It seems 5? clear that the words ‘erroneously as here paid’ used cannot be applied to any tax which for reason invalid, as is contended by To plaintiff. give that to these words meaning would render all superfluous other five construed, subdivisions the section. So would be. еrroneously paid when the exempt from taxation or if the complainant was owner of the property, in fact would be erroneously in this sense when any situation presented in all of the six subdivisions of the section. We cannot ascribe to the Legislature the sedulous im- ineptitude plied the supposition that it painstakingly enumerated in six separate subdivisions the specific situations in *4 which a refund might be if had the plain language of one of the shortest of the subdivisions covered every situation enumerated in all the others.
We think the word ‘erroneously,’ as used in subdivi- sion 5 of section bе must taken in its ordinary sense of ‘mistakenly.’ There was or no error mistake in payment made It plaintiff. very tax and the amount of tax that it intended to nor pay; was there error any in noting the in payment issuing or view, In our receipt. the words ‘erroneously were paid’ to cover clearly intended cases where was made under a as to what misapprehension was being aBut tax and paid. intentionally understandingly paid, the assessment was made or the tax levied in- although not and we do think erroneously correctly, paid, a refund of to allow designed that section 6813 such a taxes in situаtion.” be
Twinde, necessarily cases that must is one those supra, with which it deals. to the fact situation application limited in of ordinary with the payment there was concerned The court term “taxes”. It was not as we understand the usually taxes this is too to admit plain law on inheritance taxes. That writing further wrote in is established because the court any doubt and Code of “remains the Sections 6813 Twinde that Code recovery paid.” for the Section only remedy 1919, was the law when Twinde was before the court and it a today, as its 10-41-83 counterpart remedy SDCL does provided, erroneоusly of inheritance taxes SDCL 10-41- recovery paid. be 83 does not contain six different situation's where the wholly refunded and the words in “erroneously paid, part” and strictly contained in this section are not boxed severely section, limited because of five other subdivisions of same as Twinde, did were in The court not define the word they supra. alone. We write on clean slate here. “erroneously” standing The laws to the and the amount of relating imposition inheritance taxes and the and collection of them administration are found in 10-40 and It is in SDCL SDCL 10-41. provided 10-40-26, that “The tax pertinent part, imposed by chapter shall full value in money the true and market computed upon indebtednéss, of such of adminis- any expenses less * * tration, In our we chargeable such *.” case against property, which would reduce the are concerned with an indebtedness value the estate which the tax would be computation on made. follows: provides SDCL 10-41-32 have power shall of revenue department
“The where the any property value of as to the stipulate when stipulation being probated, force and of the same shall be by approved the court.” same effect a decree to the effect *5 was done. this shows that to the facts as The stipulation as follows: provides 10-41-34 SDCL taken, “Unless an is the appeal determination of county upon the amount of tax due shall be final all to described in the or the report findings court, of the except 10-40-16 to provided §§ 10-40-18, inclusive, but a new be had appraisement may court at time of county any upon discovery further assets of the estate.”
The sections by excluded relate exception and contingent conditional transfers taxed at the rate highest and are not possible to our applicable situation. The appeal statute is SDCL 10-41-36 and such section that the shall provides appeal be taken within 30 days entry from the of the decree the county court. In this case the time for appeal within 30 expired from October days when the court entered its order determining amount of the tax due. The case does order, not reach us by an from appeal but reason of SDCL 10-41-83which reads as follows:
“When any inheritance tax imposed by chapter and chapter 10-40 shall have been erroneously paid, wholly or part, thе person paying, same shall be entitled to a refund of the amount so erroneously paid, revenue, department upon satisfactory proof fact, shall a voucher for approve a refund of the portion such tax state, received by the upon which the state auditor shall draw a warrant state treasury for the amount thereof in favor the person entitled thereto. Upon a refund being the state it shall be the duty the county com- missioners to repay the claimant from the general fund of the county the portion of such tax retained by the county, upоn a claim being presented therefor.” It that the refund statute cited has no plain above application determined until and after the tax been has paid.
It provided by law that “Within after the thirty days qualification of executor or administrator he appointment shall make and return under oath the clerk of court issuing to him his his letters” inheritance other report showing among *6 valuation, and other property, of the inventory the things complicated, estate is Where the SDCL 10-41-17. information. 10-41-20. filing. SDCL extend the time for county the court not does know usually executor or At the administrator point that in this case clear claims, filed. It appears if will be any, what was tax he report, his inheritance filed when the executor that $10,550.82 of in the amount filed of the claim later not aware before the $6,000. the tax of He paid sum and allowed the four months within the was filed filed, which claim claim was uninformed, the the amount of The executor allowed. period misinformation, willingly. and was based on tax case of had before it the Boe Dakota The state North 921, the question N.D. 19 N.W.2d County, Steele court the amount estate fixing the county the order of whether res on the amount of the judicata same was assessing tax and the so as to a preclude the estate against estate tax assessable legally has in cases where been overpayment refund of overpayments Boe, their statute which quoted In the court supra, made. “ ‘All be made upon appraisals assessmentsshall provided, be transferred as the full fair cash value of to and the ” appellant’s In Boe it was the date of the death of the decedent.’ court on October by county contention “that the order 29, 1940, all questions the estate tax res assessing judicata tаx; to the the amount of the estate that relating legality for order became final and when the time appeal conclusive tax that the amount of the estate expired; consequently, legally actually due was not to review consideration subject 6, 1943, county January court when it made its order dated any question refund of and that as to ordering overpayment; the amount of and whether there had been an review the courts at all.” subject not overpayment said, contention, North Dakota court Answering sub- such order was “Assuming, deciding, without appeal to we are that the failure to ject appeal, agreed a refund for an right overpayment. does bar the subject appeal, If an order estate tax is assessing the statutory relating under provisions then within thirty must taken appeal, appeal (30) days. If the order of county making assess- ment has the effect of establishing conclu- finally sively that the amount of the is the assessment amount *7 of tax and legally actually due and so that the payable cannot be heard to after time taxpayer for say ap- peal has on an expired, application for a refund of over- assessed, payment, that the amount which he has paid, was in excessof that for such then ob- legally owing viously order is and equally final conclusive in this respect after the expiration of the period appeal whether the estate tax has or has not been paid. provisions of the statute to a refund for an relating overpayment come into operation only after payment has been made. The statute presupposes only that an made, assessmenthas been but also that the assessment has been and paid that the amount is in excess paid of that which under the law is due for taxes.” legally The court went on to say:
“The for refundment of provisions overpayment of taxes a only are inserted statutes not as matter of fairness as an inducement to tax- justice, but tax payer pay promptly.”
Then from decision quoting of the United States Supreme Court, States, 247, 259-261, Bull v. United 295 U.S. 55 S.Ct. 695, 699, 1421, 1427, 1428, 79 L.Ed. “ that which the sovereign retains was unjustly ‘If statute, taken in violation its own withholding * * *
wrongful. Restitution is owed the taxpayer. While here the money taken through mistake any without element fraud, the unjust detention is immoral and ”’ amounts law to a on the taxpayer’s rights. frаud It is also true that the statute of North Dakota provided, as set Boe, forth in “In case an overpayment has tax been made, such shall be overpayment repaid out estate tax * * of the payment *.” In Boe it was contended that the funds there could payment was a voluntary consequently tax said: recovery. no The court in answer to that the payment whether to determine unnecessary “It order executor, as required plaintiff court, voluntary pay- not a was or was county of the * * * of that term. legal significance within the ment for a of a claim right basis of the The sole an overpayment shown that refund is that it be been made.” tax has legal and direct. It is simple refund statute tax inheritance
Our compulsion under between distinction makes no must be erroneously voluntarily. Any taxes paid SDCL 10-41-83. refunded, restrictions or qualifications. without Taxes, Inheritance, Etc., In 42 Am.Jur.2d, Statutory § refund, in part: it is stated right
“Inheritance and estate tax statutes con- frequently paid tain an for refund of taxes express provision cases, certain as where a tax was or erroneously paid, excessive, was or was or illegal wrongfully illegally collected; exacted or where the order or modifica- taxing tion or reversal thereof shows that the amount of tax due is less than the amount where a court of com- paid; determines petent jurisdiction that which property upon a tax has been is not or liable for paid subject to pay- tax, ment of the or that the amount of the tax paid excessive; or where debts are proven against after the inheritance taxes have been determined and Such a statute paid. for a refund of erro- providing constitutional, neously inheritance taxes is and is to the subject that it amounts to an objection appro- priation of for a public money private purpose contrary to the provisions of the state constitution.” American
California is
in the same
quoted
section
Jurisprudence
for the
a
authority
proposition statute
for a refund
providing
of inheritance
“erroneously
paid”
refers
to a
only
payment not made in
with the order
conformity
fixing
amount of the
and that therefore where the tax
order,
was the exact amount
specified
taxing
it was
not “erroneously paid”
statute,
within the
even
meaning
it was
though
found there had been
subsequently
overpayment.
Kelshaw v.
Court in and
San Luis
Superior
Obispo
for
County,
137 Cal.
Judgment reversed.
BIEGELMEIER, C. WOLLMAN, J., HANSON, J., Retired Justice, concur.
DOYLE, dissents. J.,
HANSON, DUNN, Retired sitting J., disqualified. Justice *9 DOYLE, (dissenting). Justice
In Security Twinde, 1928, 352, National Bank v. 52 S.D. 542, 217 N.W. this court said:
“We think the word as used in ‘erroneously,’ sub- division 6813, 5 of section must be taken in its ordinary sense of ‘mistakenly.’ There was no error or mistake in the payment mаde by the plaintiff. very It the tax and the amount of tax that it intended nor pay; was there error in the in noting the payment issuing view, In our receipt. the words ‘erroneously paid’ were 548 was where payment intended to cover cases
clearly was being as to what made under a misapprehension paid, intentionally understanding^ But a tax paid. in- tax levied assessment was made or the although and we do not think correctly, erroneously paid, is not a refund of was to allow designed that section 6813 a situation.” differ- because of the distinguishable that Twinde is Conceding personal of real and refunding law between the ence in the taxes, interpretation taxes and inheritance the same in Twinde is precisely as set forth “erroneously paid” interpret when asked to have followed one that other jurisdictions ours. refund statutes similar to quite inheritance tax 114, Estate, 1925, 236 196 Cal. In case of In re Brown’s tax refund 144, California’s inheritance construing P. their court stated: statute 4 repeatedly mind subdivision
“It should be kept indicating ‘erroneously paid’ refers to amounts —thus deter- that the was and not ‘erroneously paid’ amount mination of amount was erroneous.” And In Court Superior This in Kelshaw рosition upheld 189, P.2d County, Cal.App. For San Luis Obispo 432, wherein the court stated: exact was the
“the amount of inheritance tax the amount of for in the order provided fixing amount follows that necessarily paid, tax to conclusion * * *.” ‘erroneously paid’ have been amount there could no ex- definition in the Twinde Colorado has also applied Newton, In State v. its inheritance tax refund statute. plaining court stated: Colo. 300 P.2d mis- “The was no error or record shows that there was made by take in the tax at time it the amount of He tax and *10 plaintiff. paid very
549
that he intended to
nor
pay;
any
was there
at
protest
of
or
time
error
the demand for
payment,
payment,
inor
or in
noting
payment
receipt.
issuing
term
‘paid erroneously’
clearly intended to cover
cases where
was made under a
misapprehen-
A
sion
to what was
being paid.
intentionally
understandingly paid,
the assessment was
although
or
tax levied
incorrectly, is
erroneously
Twinde,
352,
v.
paid. Security Nat. Bank
52 S.D.
217
542,
N.W.
cited with
in Pittsburgh Coal Co.
approval
1951,
489,
v. School District of Forward
366 Pa.
Tp.,
Commission,
Two more recent Colorado decisions reaffirm this interpretation. State, 1964, 34, National State Bank of Boulder v. 156 Colo. 396 948; P.2d Mаtthews, 1971, State v. P.2d Colo.App. case, 593. to the According latter Colorado has amended its statute read follows:
“ When amount inheritance tax has been ‘[2] assessed and because of an incorrectly error fact or law made either inheritance tax commis sioner or by representative estate, the state controller, of a certificate of the inheri receipt commissioner, tance tax approved by attorney shall refund the general, incorrectly amount ” * * Colo.Sess. Laws Ch. 1.§ In to this regard amendment court in Matthews stated:
“The effect оf this amendment is to allow a refund inheritance tax which has been incorrectly assessed and law, paid because of an error fact although tax could not have been refunded as ‘paid erroneously’ under prior statute.” Newton,
As noted State v. supra, two other jurisdictions have followed the Twinde decision in the term interpreting “erroneously Commission, Shea State paid”. Tax *11 vehicle 209, included in motor fuel tax Utah P.2d 274 (diesel v. District Coal Co. School Pittsburgh registration fee); 489, 1951, 253 (school tax). 366 Pa. 78 A.2d Tp., Forward case, Moreover, as in the instant the same question, when General, hе Attorney earlier to the South Dakota posed was concluded: the defini-
“It is
that
same
by applying
my opinion
as used
Section
tion to the
phrase ‘erroneously paid’
57.2306,
Court,
no
by our
that
interpreted
Supreme
refund can
had under the circumstances outlined in
letter.
to me
the tax in
question
this
It seems
that
in the
both
intentionally
understandingly paid
tax, and the
amount and the nature of the
failure to
deduct an
claim and the payment
allowable
of the
based
net value of
estate which
upon the
an
includes
deducted,
claim which
have been
does
entitle
should
the estаte
a refund of
of the
based
portion
the
the claim
should have been
upon
amount of
which
389,
deducted.”
A.G.R.
391.
1939-40
out,
True,
Attorney
opinion
as the majority
points
Twinde decision. There-
upon
was based
opinion
General’s
are
fore,
totally
Twinde
able
they apparently
distinguishing
As this
stated in
General’s
Attorney
opinion.
disregard
1917,
299, 161
38 S.D.
N.W. 279:
County,
Mellette
Jordan
however,
are,
with the harm that
“We
impressed
an
result
a needless disturbance of
established
from
arisen,
custom or
that has
based
practice
chief law officer of the executive branch
rulings
Such custom or
should
practiсe
state government.
court,
when
un-
not be
except
clearly
disturbed
law, and
when
issues
only
then
supported by
such effect.”
presented
opinion having
require
however,
I,
no
absolute
believe it
Realizing
compulsion,
proper
General to
opinion
Attorney
this instance
concur
avoid
administrative
absent a
unsettling
practices
long standing
basis than shown
stronger
by to rule otherwise. State
majority
v. Esmay,
72 S.D.
Furthermore, I believe the relies majority inappropriately on the case of Boe v. Steele County, 74 N.D. 19 N.W.2d *12 involved, 921. The North Dakota statute in is as applicable part, follows:
“ ** In case an overpayment such tax has been made, such overpayment shall be out of repaid any estate tax funds in the hands of the treasurer county upon an Order of the Court approved the State Tax A Commissioner. certified of such order copy shall be filed with the State Treasurer and he shall credit the account with the amount of the state’s proportionate on such liability refund. In any case where the State Treasurer has collected the entire inheritance re- funds may made upon approval the State Tax Commissioner in the same manner as other claims ” against the state are paid.’ Laws Ch. Sec. N.D.R.C. 57-3724. (emphasis added) It is patent question of whether the inheritance tax in that case was “erroneously paid” not before the court. As the court itself stated:
“* * * The sole basis of the to right of a claim for a refund is that it be shown that an overpayment legal has been made.” (emphasis added) It is noted that SDCL 10-41-83 is entitled erroneous “Refund of or overpayment county por- —Voucher warrant —Refund of ” Etowever, tion. under our rules of construction, statutory source notes, tross-referencеs and titles do not constitute of the part and, statute are no consequently, basis for an forming interpreta- tion thereof. SDCL 2-14-9. also cites the majority Boe decision for the proposition
that the assessment of an inheritance tax is not to be given in
force and effect of a final This be the law judgment. but, North it is not the or case my opinion, statutory Dakota law in South Dakota.
SDCL 10-41-32 provides: have
“The of revenue shall department power the value of where the stipulate any property estate is when being probated, stipulation shall be of the same force the court аpproved by the court.” a decree to the same effect effect as SDCL 10-41-34 further provides: taken, of the the determination appeal
“Unless final the amount of tax due shall be county or the report findings as to all described court, 10-40-16 except provided §§ 10-40-18, inclusive, be had but a new appraisement may *13 court at time county upon discovery further assets of the estate.” Grimes, 1973,
Also in the recent case of In re Estate of
S.D.
204 N.W.2d
Chief
Biegelmeier, with all
Justice
stated:
justices concurring,
“* * *
erroneous,
decree,
A
even
is final
though
heirs —not
as to
only
conclusivе
on the
binding
have
they
claims
made but also as to claims
could
they
White,
made. White v.
76 S.D.
Other have also been jurisdictions Estate, of In re Brown’s In the cited case question. previously stated: California court supra, 18 of the act
“If is to be" to section meaning given 900; which p. 1520), pro- Stats. p. (Stats.1917, vides that an order tax is to have the effect of fixing if any in a civil action it would follow that judgment it would have such order has fixed an erroneous amount to be in manner or reversed before a some modified could refund of of the tax thereunder any portion otherwise would have for the order accomplished, the effect of a final in a civil action.” judgment Bank Colorado also noted this in National State question State, Boulder v. supra. answer, believe,
The which I is found in SDCL 15-6-60(b), provides:
“On motion and such terms as are just, relieve a or his party legal representative order, from a final judgment, for the proceeding reasons: following inadvertence, Mistake,
(1) or excus- surprise, able neglect;
(2) Newly discovered evidence which by due diligеnce could not have been discovered in time to move for a new trial under 15-6-59(b); § Fraud (3) heretofore (whether denominated in- trinsic or extrinsic), misrepresentation, or other misconduct of adverse party; void; (4) judgment *14 satisfied, The
(5) judgment released, has been or or a discharged, which prior judgment upon it is based has been reversed or otherwise vacated, or it is no that longer equitable judgment should have prospective application; or other
(6) Any reason relief justifying from the operation the judgment. time, and made within a reasonable shall be
The motion one year nоt more than and (3) reasons (1), (2), for was entered or proceeding order after the judgment, does not this subdivision (b) A motion under or taken. its suspend opera- judgment affect the finality a court limit the power 15-6-60 does not tion. Section relieve a party action to independent entertain an order, or to grant or proceeding, from a judgment, notified as a defendant not actually personally relief to fraud set aside a judgment statute or to provided the court.” to have indicates that the appellant attempted The record it is proper procеdure, decree corrected.* original Using this is the correct situation approach my opinion of our statute. wording the face of the present must be with charged In the case the executor present that the time for claims had not filing expired knowledge claims be filed when he made his might report that additional determined. He as to the liability stipulated had the tax he intended amount of the tax and it. He the amount “erroneously The tax was not pay. paid”. result, The reaches a desirable but majority highly seeking I believe fairness and over much-settled law. justice thеy trample be achieved without result can also equitable proper and, therefore, such a route I must dissent. taking respectfully * However, in an Older dated complete in this matter. The record is not 2, 1971, judge ordered: September the circuit January on County made and entered “that of the District Court Order Tax due on the above correcting Inheritance the amount of had hereby Department of Revenue same is vacated.” be and the County order. In a mem- Court District appealed the above-mentioned County the District judge held “that opinion the circuit court orandum appears order was It jurisdiction to make the order.” had no Court Department Revenue. hearing parte notice of to the issued ex without