State Tax Commission v. Spanish Fork , 99 Utah 177 ( 1940 )

This is an appeal from a judgment which held that the statute of limitations against a claim for sales taxes began to run from the date that Spanish Fork, as a collector of sales taxes, was by law required to make a return for sales taxes due. Appellant contends that the statute of limitations did not begin to run until Spanish Fork, or the Commission for it, actually made the return. This appeal must be resolved by determining whether the view of the lower court or that of the appellant is correct.

Persons liable for the collection of sales taxes are, by Sec. 5, Chap. 20, Laws Utah 1933, Second Special Session, required on the 15th day of each month to file a return covering the preceding month and to remit the sales taxes collected during that period, except that, when the total amount of the tax for any one month does not exceed $10, a quarterly return and remittance may be made instead.

In this case the respondent filed no return covering any of the monthly taxing periods from January 1, 1934, to July 31, 1936, until August 13, 1936, when a return was filed covering the entire period and showing a tax liability of $1,251.89 with $195.85 interest. On September 18, 1936, appellant gave notice to respondent to pay this sum and demanded payment. In May, 1938, appellant brought action for the same, except $380.47 paid on January 12, 1938. The sum sued for was, therefore, $1,067.27

If the statute of limitations begins to run from the date the return should be made, then in this case it began to run as to each of the various monthly sums due, beginning with the first on February 15, 1934, and started to run as to each succeeding month's taxes on the 15th of each next month through August 15, 1936, covering the tax period of January 1, 1934, to July 31, 1936. If, however, it does not begin to run until the return is actually made, it did not begin to run before August 13, 1936, for all the amounts up to June 30, 1936, and not before August 15, 1936, for the amount of the tax collected by respondent in July 1936 — it being conceded that none of the monthly amounts for which respondent was liable was less than $10.

We think the statute does not begin to run at least until the return is actually made either by the vendor-taxpayer or by the Commission in case the vendor-taxpayer fails to make it. It is not necessary at this time to determine whether it may in certain instances start to run from a subsequent time. Before the passage of Sec. 1, Chap. 138, Laws Utah 1937, the statute of limitations applicable to liabilities imposed by statute, which includes the sales tax, was one year.

If the plaintiff could prove that the defendant had collected the tax it is quite probable that an action for money had and received might have been brought under the theory set out inAttorney General v. Pomeroy, 93 Utah 426,73 P.2d 1277, 114 A.L.R. 726. But this would not prevent the 1, 2 Tax Commission from bringing its action on the failure to perform the statutory duty to make a return and remit the tax regardless of whether collected. Certainly the vendor-taxpayer could not escape his statutory liability by showing that he failed to collect the tax, although he could escape an action for money had and received by showing that he never had received it. Both parties to this suit evidently treated the action as one brought on the statutory liability and we shall so treat it.

The statutes of limitation pertain to claims owing to the State as well as to private individuals. Sec. 104-2-31, R.S.U. 1933. In re Swan's Estate, 95 Utah 408, 415, 79 P.2d 999;Attorney General v. Pomeroy, supra. Under Sec. 104-2-26, R.S.U. 1933, the time within which the 3, 4 present action could have been brought, under the theory that the statute of limitations did not begin to run at least until a return had been made, was August 13, 1937. But Sec. 1, Chap. 138, Laws of Utah 1937, made the period in which such claims could be brought, three years instead of one, thus extending the period two years. This new statute of limitations became effective on May 11, 1937, which was before this action was barred by the previous one-year statute. Therefore, the time within which the action could be brought was extended for two years or at least until August 13, 1939. Since the action was brought in May, 1938, it was well within the extended period.

The conclusion that the statute does not begin to run at least until the date of actual return and not from the date of required return is based on the following reasoning: By Sec. 104-2-1, R.S.U. 1933, civil actions must be brought within the prescribed time "after the cause of action shall have 5, 6 accrued." The question is then, when did the cause of action accrue? The general rule is that it accrues at the time it becomes remediable in the courts, that is when the claim is in such condition that the courts can proceed and give judgment if the claim is established. In Sweetser v. Fox, 43 Utah 40, at page 48, 49, 134 P. 599, 602, 47 L.R.A., N.S., 145, Ann. Cas. 1916C, 620, we find:

"It is a rule of universal application that a cause or right of action arises the moment an action may be maintained to enforce it and that the statute of limitations is then set in motion. The test, therefore, is, Can an action be maintained upon the particular cause of action in question? If it can, the statute begins to run."

See, also, Last Chance Ranch Co. v. Erickson, 82 Utah 475,25 P.2d 952; Federal Reserve Bank v. Atlantic Trust Co., 5 Cir., 91 F.2d 283, 117 A.L.R. 1160; Centennial Eureka MiningCo. v. Juab County, 22 Utah 395, 404, 62 P. 1024; NationalBank of Claremore v. Jefferies, 126 Okla. 283, 259 P. 260; NewYork Pennsylvania Co. v. New York C.R. Co., 300 Pa. 242,150 A. 480; Bishop v. Genz, 212 Wis. 30, 248 N.W. 771; Wood on Limitations, 4th Ed., p. 684, 37 C.J. 810, 811, 17 R.C.L. 748, 749. Ordinarily, a cause of action for a debt begins to run when the debt is due and payable because at that time an action can be maintained to enforce it. But when some controlling statute or a contract existing between the parties provides that an additional thing be done before action may be brought, such as a statutory provision that a return must be filed, or, as in some insurance contracts, a provision that suit may not be brought before a certain time after the claimed loss, the statute of limitations does not start to run until the time when suit may be maintained even though interest on the amount of the liability may begin to run from the time it is due and payable. In this case the vendor-taxpayer itself made a belated return but in determining whether the Commission has standing in Court before a return is actually made we shall assume the situation in which the Commission could most reasonably claim that it was in position to bring suit against the taxpayer, to wit: the case where the taxpayer made no return at all.

Using this test we find that the Tax Commission is not in position to pursue its remedy in the courts in any case at least until an actual return has been made. If the vendor-taxpayer fails to make a return, the Commission must make one for him and follow it with demand. A brief examination 7 of the statutes prescribing proceedings for assessing sales taxes will reveal this. The machinery for assessing or ascertaining the claim of the Tax Commission when the vendor-taxpayer files no return is provided by Sec. 9, Chap. 63, Laws Utah 1933. If the tax debtor fails to file a return, the Tax Commission mails him a notice to do so. If he still fails, it makes a return for him from the "best information available," notifies him, and demands the tax as assessed. This is the basis on which the Tax Commission makes its claim. There are administrative provisions for a hearing and for a determination of the justness of this claim which may be invoked by the taxpayer, who may also bring certiorari to the Supreme Court. But ultimately what the Tax Commission sues for if the tax is not paid, is the sum which is assessed after the actual filing of a return by the vendor-taxpayer or by the Commission for him. Only by invoking the above-mentioned administrative procedure may the tax debtor question the tax or deficiency as assessed. He cannot collaterally attack the tax or deficiency so found, except in limited respects. State Tax Commission v. Katsis, 90 Utah 406,62 P.2d 120, 107 A.L.R. 1477. He cannot sit by and wait for the Tax Commission to sue him and then raise all the questions which he might have raised if he had taken advantage of his rights under the law. He must exhaust his administrative remedies. And, by the same token, neither can the Tax Commission, by itself failing to make return when the tax debtor fails to do so, sue without assessing the tax. It must sue for a stated amount. It cannot ask the court to fix the amount which should have been administratively fixed. If it did so it would not be in a position to maintain the action or to enforce it. Consequently, it would not be in a position to meet the test laid down inSweetser v. Fox, supra.

And the authorities support this view. Riley v. Howard,193 Cal. 522, 226 P. 393; Preston v. Anderson County LeveeImprovement Dist. No. 2, Tex. Civ. App. 3 S.W.2d 888; Barnes v. Turner, 14 Okla. 284, 293, 78 P. 108, 10 L.R.A., N.S., 478, 2 Ann. Cas. 391. This ruling also comports with the equities of the case. The omission of an imposed duty designed to advise an administrative body of an event which sets its process in motion, should not accrue to the advantage of the one who failed in the duty. This turns a delict into a triumph. Holding otherwise makes it the duty of the Tax Commission to ferret out and sue for taxes, businesses which may never have filed a return and of the existence of which the Commission is unaware. To the contention that the Tax Commission, by delay in filing a return for the tax debtor when he failed to file one for himself, may thus postpone the running of the statute, the ready answer lies that the vendor-taxpayer could have prevented such a result by filing the return.

It may be asked further how, without the filing of a return, is the Commission to know when the statute begins to run? If the tax is less than $10 for any month the taxpayer, under Sec. 5, need only remit and make return on or before the 15th day of the month succeeding the end of the quarter in which the tax is collected.

The judgment appealed from is reversed, with instructions to reinstate the action. Costs to the appellant.

McDONOUGH and PRATT, JJ., concur.

MOFFAT, C.J., concurs in the result.