Zitron v. City of Milwaukee , 189 Wis. 599 ( 1926 )

Eschweiler, J.

A provision of the income tax law which had been a part thereof continuously until repealed by ch. 57, sec. 1, of the Laws of 1925, viz. sec. 71.21, Stats, (formerly sec. 1087m — 26), read:

“Any person who shall have paid a tax assessed upon his personal property during any year shall be permitted to present the receipt therefor to the tax-collector, and have the same accepted in the payment of income taxes assessed against such person during said year.”

Formerly, and until .the going into- effect on June 26th of ch. 318 of the Laws of 1923, a firm or copartnership had been defined by the income tax law, sec. 71.02 (formerly sec. 1087m — 2), and had been treated as an entity, separate and distinct from the individual partners. By said ch. 318 that was changed and a new section then created, 71.02 (4), sub. (a) of which required the computing of the distributive share of each partner in the net income of the partnership and made the members liable for the same only in their individual capacity; and sub. (b) provided that the net income of the partnership shall be computed in the same manner as is income of persons other than corporations, joint-stock companies, or associations. Such change was in accord with what was declared to be the law in Westby v. Bekkedal, 172 Wis. 114, 120, 178 N. W. 451, viz.: “a partnership has no entity distinct and apart from the persons who compose it.”

The trial court was therefore clearly right in holding that the offset should have been allowed under sec. 71.21, supra. To hold otherwise would give an advantage to the sole trader over the member of a partnership, each holding the same amount of personal property and having the same income.

Some contention is made that the city treasurer, being merely an administrative officer, cannot be thus charged with the alleged judicial function of determining questions of ownership that might be thus presented. If there be reasonable grounds to dispute any such assertion the treasurer can amply protect himself by refusing to accede to such request and having it tested in court; but where, as here, the facts are undisputed, there is no more difficulty in the tax collector, who is the officer charged with such offsetting (sec. 71.21, supra), allowing an offset based upon a proportionate interest in the personal property tax paid for copartnership property than when claimed for the personal property tax of the several individuals.

The complaint stating a cause of action, the judgment was therefore properly entered.

By the Court. — Judgment affirmed.