164 P. 852 | Utah | 1917
Lead Opinion
(after stating tbe facts as above).
The important question presented by this appeal is: Was the bank (appellant) entitled to have the sum at which the real estate and improvements thereon of the building company was assessed deducted from the value of its capital stock as fixed by the assessor for taxation purposes? It is contended that since the. bank owned all of the capital stock of the building company at the time the taxes in question were levied and collected, it, in effect, owned the real estate mentioned —assessed to and in the name of the building company — and that such real estate and improvements constituted a substantial portion of the bank’s assets upon which the valuation of its capital stock, as fixed by the assessor for the purpose of taxation, was based, and that it necessarily follows that the taxing of the real property mentioned, and the taxing of the capital stock of the bank, the value of which, it is contended, is partly based upon and derived from the ownership of the property by the bank, is double taxation to the extent of the assessed valuation of the real property and is in contravention of Section 2, Article 13, of the Constitution of Utah, which, so far as material here, provides that: .
“All property in the state # * * shall be taxed in proportion to its value, to be ascertained as provided by law. The .word property, as used in this article, is hereby declared to include moneys, credits, bonds, stocks, franchises and all matters and things (real, personal and mixed) capable of private ownership; but this shall not be so construed as to authorize the taxation of the stocks of any company or corporation, when the property of such company or corporation represented by such stocks, has been taxed.” (Italics ours.).
Section 3, same article, provides that:
‘ ‘ The Legislature shall provide by law a uniform and equal rate of assessment and taxation on all property in the state, according to its value in money, and shall prescribe by general*448 law such, regulations as shall secure a just valuation for taxation of all property, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property. ’ ’
These provisions of the Constitution in plain and explicit terms provide that there shall be a uniform rate of taxation in this state so that every person, company, and corporation will be compelled to bear, as nearly as may be, his, her, or its pro rata of the burdens of general taxation according to the value of the taxable property of such prson or corporation. And it is not contemplated that, when property is once assessed for general taxes according to its value and at the same rate as other property subject to the same tax is assessed, it may again be taxed in some other way when the burden of both taxes falls on the same person, and while other property subject to the same tax is assesséd but once. To meet the requirements of the Constitution in that regard, in so far as they relate to the taxation of the capital stock and assets — property—of banking corporations, the Legislature presumably enacted Sections 2505, 2507, 2508, and 2509, Comp. Laws 1907. Subdivision 1 of Section 2505, and the part of Section 2 of the Constitution which we have italicized, are identical. Section 2507 provides, so far as material here, that:
“The stockholders in every bank or banking association, organized under the authority of this state or of the United States, must be assessed and taxed on the value of their shares of stock. # * * The cashier or other accounting officer of every such bank must furnish a verified statement to the assessor showing the amount and number of shares of the capital stock of each bank, the amount of its surplus or reserve fund or undivided profits, the amount of investments in real estate, which real estate must be assessed to said bank and taxed as other real estate,” etc.
Section 2508 provides:
“In the assessment of the shares of stock mentioned in the next preceding section, each stockholder must be allowed all the deductions and exemptions allowed by law in assessing the value of other taxable personal property owned by in*449 dividual citizens of this state, and the assessment and taxation must not be at a greater rate than is made or assessed upon other moneyed capital in the hands of individual citizens of this state.”
Section 2509 provides:
“In making such assessment, there must also be deducted from the value of such shares such sum as is in the same proportion to such value as the assessed value of the real estate of such bank or banking association in which such shares are held bears to the whole amount of the capital stock, surplus, reserve, and undivided profits of such bank or banking association. ’ ’
Section 2643 provides in general terms that property shall not be ‘ ‘ assessed more than once. ’ ’ The cashier of the bank, as required by Section 2507, Comp. Laws 1907, furnished the assessor with a statement in which he had listed the McCor-nick Building, and the land upon which it stands as an asset of the bank. This piece of property and the improvements thereon were later, presumably by the assessor, erased — eliminated — from the statement and assessed to and in the name of the building company. It is not claimed, nor can it be successfully urged, that the manner or method of listing and assessing the property was irregular. It appears that that statute (section 2507, supra) was followed in that regard. The complaint is that the amount for which the McCornick Building and the land upon which it stands were assessed was not deducted from the assessed valuation of the bank’s capital stock.
Counsel for respondent contend that the phrase, “has been taxed, ’ ’ as used in the constitutional and statutory provisions mentioned, refers to property only that is represented by the capital stock of a corporation, which property has been “directly and actually” taxed in the name of such corporation. As herein pointed out, section 2, article 13,' Constitution, and subd. 1, section 2505, Comp. Laws 1907, provide that the provisions therein contained “shall not be so construed as to authorize the taxation of the stocks of any company or corporation, when the property of such # * * corporation, represented by such stocks, has been taxed.”
The record shows that the bank invested $300,000, a sum equal to one-half of the amount for which it was capitalized. While there is no direct proof offered on the point, yet we think it may be fairly inferred from the record that the bank furnished .the funds with which to organize and establish the building company to take over this real property for its (the bank’s) convenience in conducting and transacting its business, and while there were ostensibly two concerns they were, in effect, merged into one business enterprise. In other words, they constituted two corporations in name only. Mr. Whit-. ney, cashier of the bank, on cross-examination, testified on this point as follows:
‘ ‘ When I say that $300,000 of the capital stock of McCor-nick & Co., Bankers, was invested in the building, I mean that that much money was invested in the stock of McCornick Building. It was not invested in the building directly, but the stock meant the ownership of the building, and we owned it all.”
While it is true that the legal title to the real estate was in the building company, the bank, under the undisputed facts, was the peal owner of the property in the sense that the term “owner” is used in the constitutional and statutory provisions under consideration.
Capital stock.$600,000
Surplus and reserve fund . 120,000
Undivided profits . 79,143
799,143
Real estate assessed to bank. 11,120
788,023
Deduction of 25 per cent... 197,005
Capital stock assessed at .$591,018
It will be observed that the stock was assessed at approximately $98.50 per share, nearly par value. It was not shown, nor is it claimed, that the bank owned any property other than that enumerated in the statement, as prepared by the cashier, before the erasures herein referred to were made. The presumption-therefore is that all of the assets of the bank were included and that the value of the real estate (McCornieb Building) was merged in and represented in part the value of the capital stock as ultimately fixed by the assessor for the purpose of taxation. Manifestly this must be so because it was the cashier in the first instance, and not the 'assessor, who listed the capital stock at $600,000. To this was added the surplus fund and the undivided profits. He also listed in the
The case is reversed, With directions to the lower court to set aside its judgment of dismissal and enter judgment in favor of appellant against the treasurer of Salt Lake county, as such, in conformity with the views herein expressed. Appellant to recover its taxable costs.
Concurrence Opinion
I concur. At first blush I was inclined to the opinion that the plaintiff was not in a position to successfully avail itself of the claim that the tax in question, in a strict legal sense, constituted double taxation. After much reflection, however, and with some hesitation, I have become convinced that under the peculiar provisions of our Constitution, which are quoted by Mr. Justice McCarty, the tax in question does constitute double taxation. If that conclusion be sound, then must it follow that the defendant may not retain the amount sued for in this action.