86 Ky. 213 | Ky. Ct. App. | 1887
delivered the opinion of the court.
This action was instituted in the conrt below to enjoin the collection of what was claimed to be delin
The injunction was sustained as to the collection for the entire period, except as to the year 1883, the chancellor below holding that the remedy by distress as to those years had been lost by the failure of the council to place the delinquent bills or tax bills in the hands of the collector at least once in’ each year, as required by the provisions of the charter of the city.
The failure to do this lost to the city the particular remedy, as was held in the case of Covington Gas-light Co. v. City of Covington, &c., 84 Ky., 94.
The taxes for the year 1883 are alone involved in this appeal.
The insurance company asserts an exemption from taxation on its reserved fund, or what is termed unearned premiums, on two grounds.
The first is, that being required to pay into the Treasury the sum of fifty cents upon each one hundred dollars of its capital stock by or on a named day, it was the legislative intent to exempt it "from any other burden in the way of taxation, State or municipal, and the cases of Johnson v. The Commonwealth, 7 Dana, 338, and Farmers’ Bank v. Commonwealth, 6 Bush, 127, are relied on as settling this question. An examination of those cases will show that in considering the charters of the two banks, it was held’ that the Legislature had manifested an intention to exempt the banks from any additional taxation in providing that the tax imposed “ shall be in lieu or in full of all other taxes.” There is nothing in the charter of the appellant expressly exempting its property from municipal
It is insisted, however, by the city, that the reinsurance reserve, or what has been termed unearned premiums, is liable to taxation, and as the company has-failed to list this money under the equalization law, or has deducted the amount from its assets, it is not. bearing its share of the municipal burden.
The General Statutes regulating the assessment of property provides, that after the assessment of the specific property described, each person shall fix the amount he is worth from all other sources, after deducting his indebtedness. Section 6 provides :
“The indebtedness which may be deducted as aforesaid, must be just and honest debts owing as principal, and not as surety, and created for a valuable considertion which the person intends to pay,” etc.
The fifteenth section of an act approved March 12, 1870, entitled “An act for the incorporation of and regulation of fire, marine, health, accident, etc., insurance companies, except life insurance companies,” provides as follows:
“It shall not be lawful for the directors, trustees, or managers of any insurance company to make any dividend except from the surplus profits arising from their business; and in estimating such profits there shall be
We find no provision of the general law with reference to taxation that exempts this or like corporations from the payment of municipal taxes, and no provision of appellant’s charter from which it may be inferred that such an exemption exists; and if no such burden can be imposed, it must arise from the obligation of the company to pay losses sustained out of this reserved fuud, • denominated unearned premiums, or its contingent liability to policy-holders to refund to them a portion of the premiums paid when presenting their policies for cancellation.
If the right on the part of policy-holders to demand pay for losses, or to reclaim premiums paid upon a cancelment of the insurance contract, can be regarded as an indebtedness on the part of the company, then such indebtedness may be deducted from the assets of the
The act of March 12, 1870, with-reference to the payment of dividends, requiring that no dividends shall be made of this reserved fund, does not divest this corporation of its right of property in it, or to use and invest it for the benefit of the stockholders.
The policy-holder is not required to pay taxes on the amount of his policy, because he is entitled to no part of the money until he has sustained a loss. The premiums paid on unexpired policies belong exclusively to the corporation, and a reserved fund of near seventy thousand dollars, that is used, controlled and managed by the corporation for the beneficiaries called stockholders, by loaning it out at interest or investing it in securities from which profits are constantly derived, is asked to be released from municipal burdens for no other reason than by the general law enacted for. the protection of the company and the policy-holders, no dividends are to be paid out of this reserved fund. Mortgages and bonds due the corporation, and upon which no part of the principal or interest has been paid during the last year, constitute a part of this reserved fund, yet they are the property of the corporation, and the principal and interest as it accrues held for the benefit of the stockholders ; and if an exemption exists in the one case, a like reason should exempt the entire reserved fund from taxation.
It is argued for the company that at least fifty per
In the case of the People v. Ferguson, 38 N. Y., 91, where such contingencies were held to lessen the value
In the case of The State v. Insurance Co., 35 N. J. Law, 575, it is said that this idea of the difference
In the case of the Insurance Company v. Cappellar, 38 Ohio State, 560, the insurance company, in listing its property, included as an item of indebtedness what was called reinsurance. The amount was a sum equal to fifty per cent, of all premiums .received on policies unexpirecl at the time for listing property for taxation. The sum in the aggregate retained was composed, as was alleged, of unearned premiums. The statute of that State provided that “no insurance company, organized under any law of this State, shall make any dividend except from the surplus profits arising from its business, and in estimating its profits there shall be reserved therefrom a sum equal to fifty per cent, of the whole amount of premiums on unexpired risks and policies, which is hereby declared to be unearned pre miums.
In discussing the questions raised in that case the court held that bona fide debts owing, etc., mean nothing more than a fixed liability to pay a sum certain, due or to become due at all events, and not a loss that has not happened or may never happen.
This company, in the year 1883, listed with the assessor its taxable assets amounting to eighty thousand two hundred and ninety-three dollars and sixty-four cents, and its liabilities at eighty-three thousand two hundred and forty dollars, and, therefore, for the purposes of taxation, the company was insolvent. It held United States bonds and other evidences of debt exempt from taxation amounting to over one hundred and twenty-five thousand dollars, and while amply able to meet all its engagements, crediting its taxable property or the value by the contingent] liabilities resulting, or that might result, from a cancellation of the policies, and we find the company in no condition to share its part of the local burden. It is plain that the policyholders have parted with these premiums, and that the company is in the possession of the money under their contracts of insurance. The money or its equivalent is certainly not taxable as against the policy-holder, and if not taxable in the hands of the company, it escapes the burden.
The company is the absolute owner, and should be compelled to pay the tax. It may have to pay this entire fund in discharge of its contracts, or the whole of its capital stock; but this affords no reason for the exemption, for if such a rule is adopted as the basis of taxation in the one casé, because experience has demonstrated that a certain amount of loss will be annually sustained, then the same rale must apply
When the policy is canceled or the loss sustained, the amount paid or refunded can be deducted, and not before. The peculiar character of an insurance company and its mode of doing business can not make it an exception when looking to the law regulating the mode of assessment that must apply to the present case, if taxable at all; and we find nothing in the statute implying even that this fund called unearned premiums is exempt from taxation.
Judgment affirmed on original and cross-appeal.