54 N.C. App. 202 | N.C. Ct. App. | 1981
Plaintiff assigns error to the trial court’s granting of summary judgment, contending that there exist genuine issues as to material facts concerning liability for the late listing penalty.
In effect, the question presented by this assignment is whether G.S. 105-311 controls when the tax supervisor’s office is not in possession of and denies receipt of a listing submitted by mail. The second paragraph of G.S. 105-311(b) provides in pertinent part:
For the purpose of this Subchapter, abstracts submitted by mail shall be deemed to be filed as of the date shown on the postmark affixed by the United States postal service. If no date is shown on the postmark, or if the postmark is not affixed by the United States postal service, the abstracts shall be deemed to be filed when received in the office of the tax supervisor. In any dispute arising under this Subchapter, the burden of proof shall be on the taxpayer to show that the abstract was timely filed.
Plaintiff argues that the statute is inapplicable under the facts, but that the common law is apposite. He contends that subsection (b) of G.S. 105-311 is determinative of timeliness when
Defendants, on the other hand, contend that G.S. 105-311 is completely dispositive of the case under consideration. Defendants argue that listings submitted by mail are deemed filed as of the date on the postmark, and that if there is no postmark, the statute provides that abstracts are deemed to be filed when received in the office of the tax supervisor. They assert that the tax listing must be actually received in the tax office to be considered filed, and that since they did not receive a listing, dismissal was proper.
We believe that the superior court improperly granted summary judgment in favor of defendants. Tax statutes are to be construed strictly against the taxing authority. Watson Industries v. Shaw, Comr. of Revenue, 235 N.C. 203, 69 S.E. 2d 505 (1952), citing Sabine v. Gill Comr. of Revenue, 229 N.C. 599, 51 S.E. 2d 1 (1948); Henderson v. Gill, Comr. of Revenue, 229 N.C. 313, 49 S.E. 2d 754 (1948); State v. Campbell, 223 N.C. 828, 28 S.E. 2d 499 (1944).
[I]t is part of the law of North Carolina, as it is generally elsewhere, that in cases of doubt, taxing statutes are construed most strongly against the government and in favor of the taxpayer.
Davenport v. Ralph H. Peters and Co., 386 F. 2d 199, 209 (4th Cir. 1967). Thus, where a taxing statute is susceptible of two constructions and the legislative intent is problematic, the uncertainty should be resolved in favor of the taxpayer. Salvation Army v. State, 144 Mont. 415, 396 P. 2d 463 (1964).
Statutes imposing penalties are similarly strictly construed in favor of the one against whom the penalty is imposed and are never to be extended by construction. C. D. Utility Corporation v.
The phrase “failure to list property” shall include . . . the omission to list property during a regular listing period. . . .”
Subsection (h) imposes a penalty of ten percent of the amount of the tax. Whether in the case sub judice there was an omission to list property during a regular listing period so as to allow imposition of a penalty under G.S. 105-312 is determined by G.S. 105-311(b).
It is not manifest that G.S. 105-311(b) applies to situations where the receipt of a listing is denied by the taxing authority. The second paragraph of subsection (b) addresses the issue of timeliness as revealed by a postmark or lack thereof, on abstracts submitted by mail. Defendants read the paragraph fractionally when they assert that lack of a postmark in the record and denial of receipt combine to negate, via G.S. 105-311, any issue of timeliness in the present case. The paragraph, read as an integrated whole, indicates that G.S. 105-311 applies only to situations where an abstract has actually been received and the envelope is available for scrutiny. Indeed, the first sentence says that abstracts submitted by mail will be deemed to be filed “as of the date shown on the postmark. . .”, presupposing the existence of a mark cancelling the postage. If no date is shown on the postmark, or if the postmark is not affixed, the statute says that the abstract “shall be deemed to be filed when received.” Defendants emphasize the word “received”. We find, however, that “when” is the crucial word, and that it refers to a time, not a contingency, necessarily requiring receipt as a prerequisite to application of the statute. We hold, therefore, that for G.S. 105-311 to apply, there must be conclusive evidence of the existence of an envelope. The statute merely creates logical preferences for the determination of timeliness where there has been delivery to the tax supervisor by mail. “It is axiomatic” wrote Justice Barnhill in Watson Industries v. Shaw, Comr. of Revenue, supra, p. 210, “. . . that a provision in a statute must be construed as a part of the composite whole and must be accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit.”
may not be extended by construction. Such a statute may not be applied to situations or parties not fairly or clearly within its provisions.
In construing a penalty statute nothing will be recognized, presumed, or inferred that is not expressed, unless necessarily or unmistakeably implied in order to give the statute full operation. (Citations omitted.)
Johnson Fruit Company v. Story, 171 Neb. 310, 313, 106 N.W. 2d 182, 185 (1960). Likewise, “[i]n the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out.” Gould v. Gould, 245 U.S. 151, 153, 62 L.Ed. 211, 213, 38 S.Ct. 53, 53 (1917). Thus, we refuse to extend the import of G.S. 105-311 to encompass the facts of this case. Resort must be had to the common law on the issue of receipt.
Moreover, to hold that the statute obviates the common law in this situation would preclude the plaintiff from proving timely receipt based solely upon defendants’ denial, a result likely beyond legislative design. Even were we to find ambiguity in the intent, we would be compelled to resolve that uncertainty in favor of plaintiff taxpayer. Salvation Army v. State, supra.
There is consonance in the cases regarding the proposition that evidence of the deposit in the mails of a letter, properly stamped and addressed, will warrant a finding that it was received in due course by the addressee. Willis v. Davis Industries, 280 N.C. 709, 186 S.E. 2d 913 (1972); Supply Co. v. Motor Lodge, 277 N.C. 312, 177 S.E. 2d 392 (1970); Petroleum Corp. v. Oil Co., 255 N.C. 167, 120 S.E. 2d 594 (1961). When the addressee introduces evidence that the mailing was not in fact received, such testimony simply raises a conflict in the evidence on which it is the function of the jury to pass. Daves v. Insurance Co., 3 N.C. App. 82, 164
Reversed and remanded.
