Lougee v. New Mexico Bureau of Revenue Commissioner , 42 N.M. 115 ( 1937 )

The Legislature of the state of New Mexico for the year of 1934 enacted chapter 7, Sp.Sess., entitled: "An Act to Provide for the Raising of Revenue for Emergency School Purposes by Imposing an Excise Tax Upon the Engaging or Continuing in Business, Professions, Trades and Callings For Profit in This State; Providing For the Levy, Assessment, and Collection of Said Tax; Providing For the Distribution of the Taxes So Collected and Making an Appropriation of the Same; Making Appropriations For the Administration of This Act, and For Refunds of Taxes Unlawfully Collected; Providing Penalties For the Violation of the Provisions of This Act: Repealing Chapter 72, and 115 of the New Mexico Session Laws of 1933, and Declaring an Emergency."

By chapter 73 of the New Mexico Laws of 1935 the Legislature enacted a new revenue law with substantially the same title and, in so far as this case is concerned, to the same effect. The portions of the 1935 law material to this case (and those of 1934 are exactly the same) are as follows:

"Section 201. There is hereby levied, and shall be collected by the Tax Commission, privilege taxes, measured by the amount or volume of business done, against the persons, on account of their business activities, engaging or continuing, within the State of New Mexico, in any business as herein defined, and in the amounts determined by the application of rates against gross receipts, as follows: * * *

"H. At an amount equal to two per cent of the gross receipts of any person engaging or continuing in the practice of any profession, or of any business in which the service rendered is of a professional, technical or scientific nature and is paid for on a fee basis, or by a consideration in the nature of a retainer."

"Section 304. All taxes levied hereunder shall be due and payable in monthly installments on or before the 15th day of the month next succeeding the month in which the taxes accrue. The taxpayer, on or before the 15th day of the month next succeeding the month in which the tax accrues, shall make out and file with the Tax Commission a return for the preceding month in such form as may be prescribed by the Tax Commission, showing the nature of the business engaged in by the taxpayer, the gross receipts of the taxpayer for the period covered by the return, and amount of the tax for such period, and such additional information as the Tax Commission may deem necessary for the proper administration of this act. The taxpayer shall accompany the return with a remittance of the amount of the tax due. * * *

"Section 309. If any taxpayer neglects or refuses to make a return as required by this act, the Tax Commission shall make an estimate based upon an examination of the taxpayer's books and records, or upon any information in its possession, or that may come into its possession, of the amount of the gross receipts of the delinquent taxpayer for the period in respect to which he has failed to make return, and upon the basis of said estimated amount shall compute and assess the tax payable by the delinquent taxpayer, adding to the sum thus arrived at a penalty equal to 50% thereof, together with interest at the rate of 1% per month on the tax and penalty from the date the tax was due. Promptly thereafter the Tax Commission shall give the delinquent taxpayer written notice of such estimated tax, penalty and interest, which notice shall be served personally or by mail. * * *

"Section 313. No injunction or writ of mandamus, or other legal or equitable process, shall issue in any suit, action or proceeding in any court of this state, or against any officer thereof, to prevent or enjoin the collection of any tax, penalty or interest under this act; but after payment of any such tax, penalty or interest under protest, which protest shall be duly verified by oath and shall set forth the grounds of objection to the legality of the tax, the taxpayer may bring action against the Tax Commission in the District Court of Santa Fe County for the recovery of any tax, interest or penalty so paid under protest. No such action shall be instituted more than sixty days after such payment under protest is made, and failure to bring such suit within said sixty days shall constitute a waiver of said protest and of all claims against the State on account of any illegality in the tax so paid. No grounds of illegality of the tax shall be considered by the court other than those set forth in the protest filed at the time payment is made. Appeals from the final judgment of the District Court may be taken to the Supreme Court by either party in the same manner as appeals in civil cases are taken. * * *

"Section 316. If any tax, or any portion thereof, or any interest or penalty, imposed by this act be not paid within thirty days after the same becomes due, the Tax Commission shall issue a warrant under its official seal, directed to the sheriff of any county of the state commanding him to levy upon and sell the real and personal property of the person owing the same, found within his county, for the payment of the amount due, and an added amount of ten per centum of the tax in addition to any other penalties imposed, and interest, and cost of executing the warrant, and to return such warrant to the Tax Commission and pay to it the money collected by virtue thereof, by the time to be therein specified, not more than thirty days from the date of warrant.

"The sheriff to whom such warrant is directed shall, within five days after the receipt of the same, file with the county clerk of his county a copy thereof (for which said clerk shall make no charge), and thereupon the county clerk shall record the same on his records and the day when such copy is filed. Thereupon the amount of the warrant so filed and entered shall become a lien upon all property, real and personal, of the person against whom it is issued, including choses in action, except negotiable instruments not past due. The sheriff thereupon shall levy upon any property of the taxpayer, including negotiable instruments, and said property so levied on shall be sold in all respects, with like effect, and in the same manner as is prescribed by law in respect to executions against property upon judgments of a court of record, and the remedies of garnishment shall apply. The officer shall be entitled to the same fees for his services in executing the warrant as now allowed by law for like services, to be collected in the same manner as now provided by law for like services."

The appellant is an attorney at law practicing his profession in the city of Albuquerque, Bernalillo county, N.M. He refused to make any return of the moneys received by him on account of his practice of law for the period from December 1, 1934, to July 31, 1935, and failed to pay any tax imposed by chapter 7, Laws 1934 (Sp.Sess.), and chapter 73, Laws 1935, for said period of time. The Bureau of Revenue of the state of New Mexico made an estimate, based upon certain information in its possession, of the amount of the gross receipts of appellant during said time and fixed the total of the estimated tax, penalty, and interest for such time at $75, and gave appellant notice thereof, but that he took no action with reference thereto. Thereafter, on December 20, 1935, the Bureau of Revenue issued a warrant under its official seal, directed to the sheriff of Bernalillo county, commanding him to levy upon and sell the real and personal property of the appellant for the amount of the tax. Thereupon appellant instituted this action in the district court of Bernalillo county and secured a temporary restraining order restraining the appellees from taking any steps to collect the tax, upon the alleged ground that the tax was void upon constitutional grounds.

Upon hearing appellant's petition for an injunction to restrain the collection of the tax was dismissed and judgment rendered in favor of the appellees, from which this appeal is prosecuted.

It is specifically provided by section 313 of the act of 1935, and section 314 of the act of 1934, that this character of action shall not be brought. A remedy is provided by section 313 of the Laws of 1935, and section 314 of the Laws of 1934, to determine the legality or constitutionality of the law, or the levy of the tax by an action for that purpose, after the payment of the tax under protest. That such a law is constitutional has been determined in a number of cases.

In Snyder v. Marks, 109 U.S. 189, 3 S. Ct. 157, 160,27 L. Ed. 901, the court said with reference to the collection of a tax assessed by the Commissioner of Internal Revenue against a manufacturer of tobacco, under a statute which provided no suit for the purpose of restraining the assessment or collection of such tax shall be maintained in any court: "The inhibition of section 3224 [26 U.S.C.A. § 1543] applies to all assessments of taxes, made under color of their offices, by internal revenue officers charged with general jurisdiction of the subject of assessing taxes against tobacco manufacturers. The remedy of a suit to recover back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden. The remedy so given is exclusive, and no other remedy can be substituted for it. Such has been the current of decisions in the circuit courts of the United States, and we are satisfied it is a correct view of the law."

The state of Arizona has the following provision in its tax law: "No person upon whom a tax has been imposed under any law relating to taxation shall be permitted to test the validity thereof, either as plaintiff or defendant, unless such tax shall first have been paid to the proper county treasurer, together with all penalties thereon. No injunction shall ever issue in any action or proceeding in any court against this state, or against any county, municipality, or officer thereof, to prevent or enjoin the collection of any tax levied. After payment an action may be maintained to recover any tax illegally collected, and if the tax due shall be determined to be less than the amount paid, the excess shall be refunded in the manner hereinbefore provided." Rev. Code 1928, § 3136.

The Supreme Court of Arizona, in State Tax Commission v. Board of Supervisors, 43 Ariz. 156, 29 P.2d 733, 739, in construing said statute, stated: "This court has held, Yuma County v. Arizona Swansea R.R. Co., supra [30 Ariz. 27, 243 P. 907], that under this section any taxpayer may test the validity of a tax upon any ground upon which he has not had an opportunity to be heard under other provisions of the law, and this would clearly include an increase in one's assessment made pursuant to an order of the tax commission at a time when it was not possible for him to have a hearing thereon. It is claimed, however, that because this section requires the payment of the tax before the taxpayer is permitted to test its validity, it deprives him of his property without a hearing and, therefore, does not constitute due process of law. It occurs to us that if the taxpayer has the right to recover in an action at law any portion of the tax he thinks has been illegally collected he is given a hearing thereon that satisfies due process."

The same question arose in the case of National Loan Exchange Bank et al. v. Jones et al., 103 S.C. 80, 87 S.E. 482, 483, in which the court stated: "The statutes of this state provide an adequate remedy, i.e., a payment of the disputed tax under protest and a suit for recovery of the tax unlawfully paid. * * * An adequate remedy is provided for those who pay under protest, and the order of injunction and mandamus are overruled, and the judgments appealed from reversed."

A similar question arising under the laws of Tennessee was disposed of by the Supreme Court of the United States as follows in Shelton v. Platt, 139 U.S. 591, 11 S. Ct. 646, 648,35 L. Ed. 273:

"Under that act, where an officer charged by law with the collection of revenue due the state takes any steps for the collection of the same, a party conceiving the tax to be unjust or illegal may pay it under protest, and sue the officer to recover the money back, and, if the court determines that it was wrongfully collected, then, upon its certificate to that effect, the comptroller ``shall issue his warrant for the same, which shall be paid in preference to other claims on the treasury.' And the act further provides that there shall be no other remedy in any case of the collection of revenue, and no writ for the prevention of such collection or to hinder and delay it shall in any wise issue, either injunction, supersedeas, prohibition, or any other writ or process whatever.

"This act has been sanctioned and applied by the courts of Tennessee. [Authorities]. It is, as counsel observe, similar to the act of congress forbidding suit for the purpose of restraining the assessment or collection of taxes under the internal revenue laws, in respect to which this court held that the remedy by suit to recover back the tax after payment, provided for by the statute, was exclusive. [Authority]. Legislation of this character has been called for by the embarrassments resulting from the improvident employment of the writ of injunction in arresting the collection of the public revenue; and, even in its absence, the strong arm of the court of chancery ought not to be interposed in that direction, except where resort to that court is grounded upon the settled principles which govern its jurisdiction."

The remedy by injunction was not open to appellant. The law gave him a remedy which he chose to ignore.

The judgment of the district court is affirmed.

It is so ordered.

HUDSPETH, C.J., and SADLER and BICKLEY, JJ., concur.

ZINN, J., did not participate.

On Rehearing.