Taylor v. Commonwealth, 124 Va. 445

Taylor v. Commonwealth

124 Va. 445 | Va. | 1919

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

[1] It is undisputed that intangible personal property, owned by minors who are domiciled in Virginia, is subject to taxation therein under section 168 of the State Constitution and the statutes contained in section 491 of the Code, as amended (4 Pollard’s Code, 1916, sec. 491), and Acts 1897-8, p. 756, as amended by Acts 1916, p. 828, enacted in pursuance of the Constitution; just as such property of other persons domiciled in the State is subject to taxation, unless it be true that the statute law of the State is such that no situs therein is fixed by law for the taxation of such property of a minor in a case where the minor has a guardian who is a non-resident of the State.

[2, 3] As stated in the petition—

“The sole question presented for decision is whether intangible personal estate of a ward residing in Norfolk in the hands or control of his guardian, residing outside of Norfolk, is taxable in Norfolk under the provisions of the statute.”

The positions of the appellant are as follows:

(a) That the effect of section 492 of the Code, when correctly construed, is to make the domicile of the guardian the situs for taxation of the intangible personal property of the ward which is in the possession or under the control of the guardian. But if this be not so—

(b) That there is no statute in Virginia which fixes a situs for taxation of such property where the guardian is a *448non-resident of the State—that this is a casus omissus of the statute which is fatal to the taxing power of the State in the instant case.

We will consider these positions in their order as stated.

1. Section 492 of the Code, so far as material, contains the following provisions:

“Sec. 492. By whom property is to be listed; to whom taxed. If the property be owned by a person sui juris, it shall be listed by and taxed to him. If property be owned by a minor, it shall be listed by and taxed to his guardian or trustee, if any he has; if he has no guardian or trustee, it shall be listed by and taxed to his father, if any he has; if he has no father, then it shall be listed by and taxed to his mother, if any he has; and if he has neither guardian, or trustee, father nor mother, it shall be listed by and taxed to the person in possession * * * If the property be owned by an idiot or lunatic, it shall be listed by and taxed to his committee, if any; if none has been appointed, then such, property shall be listed by and taxed to the person in possession. * *”

It is obvious from the reading of the statute that it is silent on the subject of the situs of property of minors, idiots or lunatics for the purpose of taxation. Whatever effect, on that subject, is to be given to the statute must arise from deductive reasoning. And such reasoning must be based upon the effect given to domicile by the rule which is embodied in the maxim, mobiliai sequunter personam. Accordingly, the contention of the appellant is that this statute makes the domicile of the guardian the situs of the intagible personal property of the ward for taxation, in that it requires property to be listed by and taxed to the guardian instead of the ward.

The provisions of the statute above quoted, both in the caption and body of it, concern merely by whom the property is to be listed and to whom taxed. That this statute *449does not fix the domicile of the person by whom it requires property to be listed, and to whom it' requires it to be taxed, as the situs of such property for taxation, is apparent, we think, from a reading of it, in the light of the following considerations. The statute embraces both tangible and intangible personal property. The situs of tangible personal property for taxation is the locus of the property itself, and not the domicile of the person by whom the statute aforesaid requires it to be listed and to whom it requires the property to be taxed. This single consideration refutes the reasoning on which the position of appellant under consideration is based. Further: Where the owner is a minor, idiot or lunatic, he is, of course, incompetent to list for taxation property owned by him, and alike incompetent to act as a payer of taxes. Hence, the statute in all such cases provides for some one else than the owner of the property to list it for taxation and to whom it shall be taxed. To provide a competent person to list the property for taxation and also to act as payer of the taxes thereon, who will be likewise a person competent to give a correct list and one who, if not the owner, will be charged with a responsibility to the property owner in the premises, were, we think, the objects and purposes of the statute in designating by whom property of such persons is to be listed and to whom taxed, and not the making of the domicile of the former- person the situs of the property for taxation. What taxing jurisdiction should be such situs is wholly apart from such objects and purposes.

Further: As is stated in the opinion of this court delivered by Judge Burks in the case of Wise v. Commonwealth, 122 Va. 693, 95 S. E. 682, “* * it is the policy of this Commonwealth to impose taxes on all intangible property of its citizens in the county or corporation of their residence, * *” The construction which appellant seeks to have placed upon the statute under consideration would *450make it change such settled policy of the State in such cases as that under consideration. Such a purpose would need to be plainly apparent from the language of the statute before such a construction could be given to it. There being an entire lack of such a purpose apparent from the provisions of the statute, as we construe them as aforesaid, we cannot give it the construction sought by appellant.

There are provisions of the statute under consideration which are not quoted above, which concern property, namely, certain separate property, property held in trust and other property in certain cases therein mentioned, for taxation, of which such statute does plainly fix the situs; but these provisions do not concern such property as is involved in the case before us.

We conclude, therefore, that the statute relied on does not have the effect contended for by appellant, in 'his position (a) above noted.

[4] We come now to consider the alternate position of appellant (b) noted above.

In the outset of this consideration it should be stated that if there were no situs fixed by law for the taxation in this State .of the property in question, it is well established that it could not be assessed for taxation or taxed in this State, But from this the conclusion does not follow that the statute law of the State can be alone looked to upon the inquiry whether such situs is fixed by law.

The general rule of law is well settled that, in the ab-sense of some statute fixing a different rule, the situs for taxation of intangible personal property of one domiciled in f.Viis State is at the residence of the owner of it. State Bank of Virginia v. City of Richmond, 79 Va. 115; Cooley on Taxation, 63. On principle, this rule applies to such property owned by minors no less than to that owned by persons sui juris; and no authority to the contrary has been cited or called to our attention.

*451[5, 6] As we have seen above, the statute law of Virginia, relied on by appellant to have that effect, has not changed the general rule of law aforesaid by making the domicile of the guardian the situs for taxation of the intangible personal property of his ward, when the ward is domiciled in this State. Nor does the statute divest the ward of his beneficial ownership of such property. Where a ward is domiciled in this State, therefore, his domicile fixes the situs of his intangible personal property for taxation therein.

In such case, no statutory designation of the situs for taxation of such property is needed, unless it be the purpose of the legislature to alter the settled policy of the State aforesaid. Such a purpose will not be assumed, but, as aforesaid, must be made to plainly appear by the language of the statute. In the absence of such a statute, the maxim mobilia sequunter personam is operative and fixes such sitrn.

The case of Hurt v. Bristol, 104 Va. 218, 51 S. E. 228, 7 Ann. Cas. 679, however, is cited and strongly relied upon by the plaintiff in error. That case, it is true, held that the situs of intangible personal property owned by a lunatic, who 'had a committee having possession or control of the property, was at the domicile of the committee. But that was a case of a committee who, under section 1702 of the Code, had a certain custody and control of the person of the lunatic, and the same principle did not apply which is applicable-in the case of a guardian and ward with respect to the situs for taxation of the intangible personal pi'operty of the ward.

For the foregoing reasons, we find no error in the action of the court below, and the judgment under review will be affirmed.

Affirmed.