133 Ky. 313 | Ky. Ct. App. | 1909
Opinion op the court by
Affirming.
■This suit involves the right of the board of valuation and assessment to assess appellee’s franchise for taxation for 1905, under the provisions of the revenue law of 1906, approved March 15, 1906 (Laws 1906, p. 88, c. 22). Prior to September, 1905, the appellee delivered to the Auditor of Public Accounts its verified statement, as required by Section 4078 of the Kentucky Statutes of 1909 (Russell’s St. Sec. 6051), in which it set out in detail the facts required to be set out therein. No action was taken upon this statement by the board of valuation and assessment until in June, 1907, when the board fixed the tentative value of the franchise as of September 1, 1905, at_$122,084, the taxes on which sum would amount to $610.42. Of this action the board notified appellee, and stated that under the law it had thirty days from the receipt of notice to appear and show cause why the valuation should not become final. On July 8th following, and within thirty days, appellee appeared, and requested that the valuation, as fixed by the board, he changed. This request was refused, and on the same day the hoard entered an order making said assessment final, and served notice upon appellee company that it would require appellee to pay the taxes, as fixed in said assessment, within thirty days, or else the penalty fixed by law would be enforced. The valuation, as fixed by the board, was made from the statement alone. No proof was taken, and no other information
For appellee it is contended: That its assessment for the year in question should have been based upon Sec. 4080 of the Kentucky Statutes prior to its amendment by the Legislature in 1906. That, under the law as it then stood, it was clearly entitled to have the valuation of .its franchise determined by ascertaining what per cent, its gross earnings in Kentucky for the fiscal year ending June 30, 1906, was of its entire gross earnings during that period, and then this per cent, of its capital stock, surplus, and undivided
In the cases of James, Auditor v. United States Fidelity & Guaranty Company, and James, Auditor v. American Surety Company of New York (this day decided) 117 S. W. 406, it is held that, in fixing the valuation of the franchises of appellee and kindred corporations, it is the duty of the assessing board to take into consideration both the gross earnings of said corporations in this State and the net income in this State, and from a consideration of both of these items fix a fair and reasonable valuation upon the franchise. The board in the instant case having taken into consideration only the net income in fixing this valuation, as is evident from an inspection of the record, the chancellor did not err in enjoining and restraining the collection of the tax upon their franchise, the valuation of which was not fixed in accordance with the provisions of the statute. Conceding that it might be assessed under the act of 1906, the case under consideration is very unlike that of Hager, Auditor v. Citizens’ National Bank, and is not controlled by that case, for the reason that the Legislature clearly intended that the bank should be assessed under the act of 1906 for the fiscal year be
Applying this rule to the case at bar, we have no difficulty in the solution of the question. The property is subject to taxation under the law in force at the time when it should have been assessed and taxed. Upon a return of the case, it is the duty of the assess - ing board to assess the franchise of this appellee for the year in question under the law then in force, to wit, the law prior to its amendment in 1906.
Judgment affirmed.