268 So. 2d 760 | Ala. | 1972
Appellant taxpayer, Harland L. Radue, appeals from a judgment dismissing his declaratory judgment action against agents of the Department of Revenue of the State of Alabama and the Sheriff of Jefferson County.
On August 17, 1970, the State of Alabama made a preliminary income tax assessment against Harland L. and Jo Ann Radue based on their failure to make a return for calendar year 1969. On January 5, 1971, Harland L. Radue filed an individual *483 income tax return which contained no statement of salary, deductions, or exemptions, but rather had written on its face, "I plead the 5th Amendment of the U.S. Constitution and in violation of my rights to privacy." On January 7, 1971, the State made a final assessment of income tax against Harland L. and Jo Ann Radue in the amount of $692.11 for 1969 and ordered that a copy of this final assessment be sent by certified mail to them. On September 22, 1971, Harland L. Radue filed this action in the Circuit Court of Jefferson County seeking to have the assessment declared void. The State's motion to dismiss was granted on November 18, 1971. From this order of dismissal, Radue perfects this appeal.
The taxpayer (hereinafter referred to as the appellant) contends: (1) that the "blank" return of January 5, 1971, was a return so that the State of Alabama, on determining the tax due to be different from that claimed by the appellant, must follow Title 51, § 407 which provides for notice to the taxpayer of the amount of the assessment and the fixing of a date for the hearing of any protest by the taxpayer; (2) that even assuming the January 5, 1971 "blank" return was not a return, the State of Alabama did not use the best information available in making the final assessment as required by Title 51, § 416; (3) that, in light of his constitutional objections to filing an income tax return pursuant to Title 51, § 394, he did not have to exhaust the statutory method of appeal, as provided for by Title 51, § 140, before resorting to a collateral attack of the final assessment.
As to the appellant's first contention, Title 51, § 394 provides that a return state specifically the items of gross income and the deductions and credits claimed by the taxpayer. In the instant case, the appellant's "blank" return of January 5, 1971 did not contain any of the items required by the statute. The "blank" return cannot be considered a return within the provisions of Title 51, § 394. See United States v. Porth,
The appellant's second contention is that in the absence of a return for 1969, the provisions of Title 51, § 416 require that a final assessment be based "on the best information obtainable," and that, in the instant case, while it is stated in the record that the final assessment was made from the "best information available," it does not appear from the record what this best information consisted of, and that this omission renders the assessment void. The preliminary assessment of August 17, 1970, on which the final assessment of January 7, 1971, was based, states that it was made from the "best information obtainable." The Department of Revenue was not obligated to set out specifically what information it considered in making the final assessment in order to comply with the provisions of Title 51, § 416. In view of the Department of Revenue's compliance with the statutory provisions (i. e. Title 51, §§ 407, 416), the appellant's second contention must fail.
We come now to appellant's third contention, that his declaratory judgment action was maintainable even though he took no appeal from the final assessment made by the State. The appellant contends that the appeal procedures outlined in Title 51, § 140 need not be followed where the attack is on the constitutionality of the taxing system. We disagree.
In Sparks v. Brock Blevins, Inc.,
The court below did not err in dismissing the appellant's complaint. The judgment of dismissal is due to be affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and SOMERVILLE, JJ., concur.
