Untitled Texas Attorney General Opinion ( 1947 )


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  •                                                                  R-949
    E   ATTORNEY              GENERAL
    Q,F TEXAS               Overrules opinion dated
    5/24/37 to Cecil Ii.Bird
    Au``IN``.-I~xAs         Comptroller'sDept.
    PRICE   DANIEL
    ATTORNEY
    GENERAL
    December 3, 1947
    Hon. Geo. R. Sheppard
    Comptroller of Public Accounts
    A uatin, Texaa                 Opinion Ro. V-440
    Re: Whether half sister
    Is included in the
    classifioatlonof
    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 Inheritancetax 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 exemptionsallowed under
    the statutes, this departmentallowed 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 controversywith 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 inheritancetax "In accordancewith the following clas-
    sifications". The Articles which follow establish differ-
    Hon. Geo. Ii.Sheppard - Page 2   (v-448)
    erent classes, define those within each class, state the
    exemption to which the members of the partfeularclass
    are entitled,and impose a tax upon the amount in excess
    of the applicable exemption in fixed percentagesfor 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-fivethousand 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 establishedby 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 DepartmentalOpinion on whiah your ruling
    was based states that "our Inheritancetax 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 undoubtedlyhad 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.uchcollateralbe 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
    justificationunder 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 7122.
    Hon. Oeo. H. Sheppard - Page 3 ,(~-448)
    Various authoritieshave defined the ‘terms
    “brother’and “sister” as Including "hslf brother" and
    “half sister”. ColrpusJuris, Vol. 9; pp. 679, 680, and
    Vol. 58, PP. 739,       ebster*s BlewIntbrtitibtilMb.-
    ;:,“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 classlficatlonof “brothers”and “sisters”     Is more-
    over in line with the Texas decisions whioh adhere to
    the establishedrule 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
    inheritancetaxes 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)
    379.
    You are therefore advised that a half sister
    properly falls within the olasaifioatlonof Artlole 7120
    and Is entitled to the same exemptionand same tax ratea
    as a sister   of whole blood.
    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 Inheritance taxes due by
    virtue of Ch. 5, Title 122, V.C.S., a half
    sister should be ~placedin the sa.meclas-
    slficatlonas a sister. Harlov v. King
    17 T. 177; People v. Elllff, 
    219 P. 225
    ,‘and
    authoritiescited therein. The Opinion of.
    Hon. Geo. H. Sheppard - Page 4 ,,(V-448)
    this Offlae dated May 24,,,1937addresaed to
    the Bon; Cecil H. Bird of the ~ComptPoller~s
    Department Is overruled.
    Youra very truly
    ATTORREYGERFlRALOFTKXAS
    Bra-Mrs. MariettaaCreel
    MC/erc/lh                          Assistant
    APPROVED:
    

Document Info

Docket Number: V-448

Judges: Price Daniel

Filed Date: 7/2/1947

Precedential Status: Precedential

Modified Date: 2/18/2017