Case Information

*1 R-949 E ATTORNEY GENERAL Q,F TEXAS Overrules opinion dated 5/24/37 to Cecil Ii. Bird Comptroller's Dept. Au~~IN~~.-I~xAs PRICE DANIEL ATTORNEY GENERAL December 3, 1947

Hon. Geo. R. Sheppard

Comptroller of Public Accounts

A ua tin, Texa a Opinion Ro. V-440

Re: Whether half sister Is included in the classifioatlon of sister for inherit- ance tax purposes Dear Sir:

By your letter of Rovember 21, 1947, we are

advised of the following facts:

"This department has fixed and assess- ed an Inheritance tax against the eatate of Leo T. Cone, late a resident of ffonxales County. The estate, under the terms of the will of the deceased, was devised to two sisters, 8 brother and a half sister, and when applying the exemptions allowed under the statutes, this department allowed a full exemptlon of $10,000 each to the sisters of the full-blood, but only allowed an exemption of $5,000 to the slater of the half-blood. "The exemption allowed the sister of the half-blood Fs now In controversy with the At- torney of Record, Mr. Ii. 1. Miller of Gonzales, Texas. . . ."

We are further advised that the value of the property passing to the half sister was less than $25,000 and that the tax was computed at the rate of 3$ of the value In excess of $5,000. You state that your ruling was based on an Opinion of this Department rendered in 1937 and request that we reconsider the holding of that Opinion.

Article 7117, Ch. 5, Title 122, V.C.S., imposes an inheritance tax "In accordance with the following clas- sifications". The Articles which follow establish differ- *2 Hon. Geo. Ii. Sheppard - Page 2 (v-448)

erent classes, define those within each class, state the exemption to which the members of the partfeular class are entitled, and impose a tax upon the amount in excess of the applicable exemption in fixed percentages for va- rious value brackets. These brackets and percentages vary for each class. Article 7120 provides that "if passing to or for . . . the use of a brother or sister or a direct llneal desoendant of a brother or slater, of the decedent, the tax shall be three per cent of any value In exoess of ten thousand dollars and not exceed- ing twenty-five thousand dollars; . a ." The ascending rate of tax on other value brackets follows. If brothers and sisters of the half blood do not come within thls class, they are relegated to the category of "any other person" and embraoed by the terms of Article 7122. #em- bers of the class established by Article 7122 receive an exemption of $500 and are taxed at 5s on any value in excess of $500 and not exceeding $lO,OOO, wtth stated ln- creases in the peroentage of the tax as the value braoket rises.

The Departmental Opinion on whiah your ruling was based states that "our Inheritance tax law operates In dipect relation to the laws of descent and distrlbu- . . .) *" and In holding that a tion Fn effect in Texas brother of the half blood was entitled to half the ex- emption accorded a brother of the whole blood, the writer undoubtedly had in mind the provisions of Article 2573, V.C.S., whloh states that "where the fnherltance is directed to pass to collateral kIndred of the intes- tate, if part of s.uch collateral be of the whole blood, and the other part of the half blood only of the intes- tate, those of the half blood shall InherLt only half SO much as those of the whole blood; e o *" However, it Is obvious that an allowance to 8 half slsl;~3~ of only one- half'the Exemption allotted to a'brother or a sister of whole blood, but a computation of the tax at the rates stated for the latter class, as was done in this case, gives a hybrid result for which there can be no posstble justification under any theory- Moreover, we think It is apparent that the creation of a different exemption with or without a different tax rate is, in effect, the creation of a different class and an act which lies only in the power of the Legislature. A half sister is either within the class created by Article 7120 or out of it; and if out of It, must, as aforesaId, be relegated to "any other person" and the class created by Article

Hon. Oeo. H. Sheppard - Page 3 ,(~-448)

Various authorities have defined the ‘terms

“brother’ and “sister” as Including "hslf brother" and “half sister”. Colrpus Juris, Vol. 9; pp. 679, 680, and ebster*s Blew Intbrtitibtil Mb.- Vol. 58, PP. 739, ;:,“zioiei ~&&dth~&WSupreme Court of Texas in 16%

terms are general, and those of the half as well as those of the whole blood come striotly within their scope and slgniflcatioti.” Marlow v. fin&, v& 177. See also Watkins et al v’. Blount 94 S Y .

. Although no Texas case has construed ihe te&s as used In the lnherltame tax statutes; we see a’o reason why the same constrwtlon would not be applied. This Is the view of’ the Supreme Court of Colorado, and the opip- ion contains an excellent summary and analysis of the authorities . People V. Elllff, 219 P. 225. The result of Including “half brothers” and “half sisters” within~ the classlficatlon of “brothers” and “sisters” Is more- over in line with the Texas decisions whioh adhere to the established rule requiring that words in common we when found in a statute must be given the sense ih which they are ordlnarlly used, T. k P’. Ry Co. v. Railroad’ Commission of Texas, 105 Tex. 393 l;O S.W. 878 Qd with the pronouncements .of our co&s to the efiett that inheritance taxes are special taxes and that the statutes Imposing same will be construed strictly against the tax- 1% power. Lewis, Assesaor.et&v. O’Halr, 130 S.W. (2)

You are therefore advised that a half sister properly falls within the olasaifioatlon of Artlole 7120 and Is entitled to the same exemption and same tax ratea of whole blood. as a sister

The Opinion of this Offioe dated May 24, 1937 addressed to the Hon. Ceoll H. Bird of the Comptroller’s Department is overruled .

SUNMARY In computing taxes due by Inheritance virtue of Ch. 5, Title 122, V.C.S., a half sister should be ~placed in the sa.me clas- slficatlon as a sister. Harlov v. King 17 T. 177; People v. Elllff, 219 P. 225,‘and authorities cited therein. The Opinion of.

Hon. Geo. H. Sheppard - Page 4 ,,(V-448)

this Offlae dated May 24,, ,1937 addresaed to the Bon; Cecil H. Bird of the ~ComptPoller~s Department Is overruled.

Youra very truly ATTORREYGERFlRALOFTKXAS Bra- a Mrs. Marietta Creel MC/erc/lh Assistant

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