Brauff v. Commissioner of Revenue , 251 N.C. 452 ( 1959 )

111 S.E.2d 620 (1959) 251 N.C. 452

Herbert D. BRAUFF (Deceased), Mrs. H. D. Brauff, Executrix, Petitioner,
v.
COMMISSIONER OF REVENUE of the State of North Carolina, In The Matter of the Assessment of Taxes By The State of North Carolina For The Income Year 1953.

No. 463.

Supreme Court of North Carolina.

December 16, 1959.

John Webb, Wilson, Frank P. Meadows, Jr., Rocky Mount, for petitioner, appellant.

Malcolm B. Seawell, Atty. Gen., Lucius W. Pullen, Asst. Atty. Gen., for the State.

HIGGINS, Justice.

The record discloses that Herbert D. Brauff died in Richmond, Virginia, on June 15, 1955. His will was executed in Wilson County on April 9, 1953. Laura Brauff, wife of the testator, a resident of Vandergrift, Pennsylvania, was named executrix. A controversy arose as to whether the testator was a resident of North Carolina or of Pennsylvania. He owned extensive property in both states. The executrix probated the will in, and received letters testamentary from the probate court in Vandergrift, Pennsylvania. On July 6, 1956, Mrs. Brauff obtained letters testamentary from the Clerk Superior Court in Wilson County and executed a bond for the faithful discharge of her duties.

At the time of appointment Mrs. Brauff did not designate a process agent in North Carolina as required by G.S. § 28-186. For failure to appoint a process agent and to file an inventory in Wilson County, the Clerk Superior Court, by proper citation, directed Mrs. Brauff to appear and show cause why her letters testamentary in North Carolina should not be revoked. On April 26, 1956, Revenue Commissioner Eugene Shaw intervened and made himself a party to the removal proceeding. On February 8, 1957, the Clerk Superior Court of Wilson County entered an order revoking the letters testamentary theretofore issued to Mrs. Laura Brauff and appointed Robert M. Wiley ancillary administrator c. t. a. of the Brauff estate. The Revenue Commissioner of North Carolina, therefore, having intervened and made himself a party to the proceeding in which Mrs. Brauff was removed and Mr. Wiley was appointed administrator c. t. a., was charged with notice that Mrs. Brauff had no power to act further for the estate in North Carolina, and that Mr. Wiley, the ancillary administrator, alone was authorized to represent the estate here. The Commissioner's assessment notice should have been sent to him.

The record recites: "Pursuant to the provisions of G.S. § 105-241.1 an assessment of additional income taxes and interest was made against Herbert D. Brauff, deceased, on April 2, 1957, and on that date a notice thereof was transmitted to Robert M. Wiley, Administrator c. t. a. of the Estate of said decedent." At no time has Robert M. Wiley, Administrator c. t. a., been a party to this proceeding. We are not, therefore, called upon to determine the effect of notice, if any, to him. Mrs. Laura Brauff, executrix, and the Commissioner of Revenue are the only parties to this proceeding or to this appeal.

A tax assessment of the type here involved is a somewhat summary proceeding. However, before an assessment becomes final, notice is required to the end that the taxpayer may have opportunity to be heard on the validity of the assessment. While administrative bodies are not required to adhere strictly to procedural rules, nevertheless those whose rights are adversely affected are entitled to insist on compliance with the requirement of due process of law. Shields v. Utah Idaho Central R. R., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111; Interstate Commerce Comm. v. Louisville & N. R. R., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431. See the many cases there cited. Due process requires notice.

The Commissioner of Revenue sought to levy additional income taxes against the estate of Herbert D. Brauff, deceased. It was his duty to give the notice required to someone clothed with authority to represent the estate and to contest the validity of the proposed assessment. On March 13, 1957, the petitioner was without authority to represent the Brauff Estate in North Carolina.

G.S. § 28-176 provides: "All actions and proceedings brought by or against executors, administrators or collectors, upon any cause of action or right to which the estate is the real party in interest, must be brought by or against them in their representative capacity." In construing the statute this Court, in the case of Cannon v. Cannon, 228 N.C. 211, 45 S.E.2d 34, held: "But we have no statutory authority which authorizes a foreign executor or administrator to come into our courts and prosecute or defend an action in his representative capacity. * * * Ordinarily when an estate is being administered in a probate court of another State * * * action * * * cannot be maintained in our courts except by * * * ancillary administrator of such estate. * * *" The Cannon case involves "an action in court." However, the statute embraces "proceedings" upon a cause of action or "right." In such proceeding the foreign executrix, Mrs. Brauff, could not defend. Mr. Wiley, the ancillary administrator, alone could defend. In such case the law required notice to Mr. Wiley. Under the circumstances, the notice to Mrs. Brauff, Executrix, given by the North Carolina Commissioner of Revenue by letter dated March 13, 1957, was insufficient notice to the estate upon which to predicate the assessment of income taxes for the year 1953.

In the view we take of this proceeding, it is immaterial whether the petitioner could enter a special appearance before the Commissioner, the Tax Review Board, or the Superior Court. As a foreign executrix acting under the Probate Court of Pennsylvania she had no right or authority to act for the estate in North Carolina. Cannon v. Cannon, supra.

The North Carolina Revenue Commissioner in the first instance, the Tax Review Board, and the Superior Court of Wake County successively, were in error in holding that notice to the petitioner was sufficient to support the assessment.

The judgment of the Superior Court of Wake County is

Reversed.