Commonwealth v. Kentucky Heating Co.

Opinion of the Court by

Judge Clarke

Eeversing in part and affirming in part.

On April 29, 1911, the Commonwealth, by one of its revenue agents, began this action in the Jefferson county court, seeking to assess, as omitted property, certain tangible and intangible personal property, alleged to have been owned and omitted from assessment by the Kentucky Heating Company, a Kentucky corporation, for the years 1906 to 1911, inclusive.

A demurrer was sustained to the statement filed, and the action was dismissed by a judgment of the county court, rendered December 17, 1912.

From this judgment an appeal was taken to the Jefferson circuit court on January 14,1913, in which court the statement was amended and reformed into one statement of two paragraphs, the first paragraph relating to tangible property, and the second, to intangible property alleged to have been omitted from assessment by the defendant. The omitted tangible property was alleged to consist of the following items:

“Fuel, $5,000.00; coke and by-products, $5,000.00; materials and supplies to be used in connection with their lighting and heating plant, $48,000.00; engines and boilers, $45,000.00; machinery, $325,000.00; tools, $32,000.00; vehicles, $5,000.00; horses and mules, $5,000.00; harness, $1,000.00; office furniture and fixtures, $500.00; typewriters, adding machines and office machinery, $500.00; safes, $300.00; plant furniture and fixtures, not included in machinery, engines and boilers, $10,000.00; 17,000 meters, $185,000.00; 40 miles of pipe lines, $200,000.00.”

The material allegations of the second paragraphs, which attempted to assess intangible property, are as follows:

“That on September 1,1905; September 1, 1906; September 1,1907; September 1,1908; September 1,1909, and September 1, 1910, the defendant, Kentucky Heating Company, was the owner and in possession of the following personal property located in Jefferson county, Kentucky; having a taxable situs therein and of the fair cash value as stated, to-wit: cash on hand, $750.00; cash on deposit in bank, $43,000.00; accounts due from, its customers for gas and by-products of its plant, $212,000.00; a chose in action against the Louisville Gas Company pending in the Hardin circuit court and at this time reduced to judgment $200,000.00; bonds in subsidiary companies, Kentucky Fuel Gas (Company and Kalor Oil &j Gas Company, $60,000.00. . . .

“That the said defendant company in reporting its property to the State Board of Valuation and Assessment for the assessment of its franchise tax neglected and refused to report the property above set forth belonging to it to the said board and said board having no knowledge of the ownership of said property or of said property or that the defendant owned it did not assess and consider said property in arriving at the value of the defendant’s franchise for each of the years 1906, 1907, 1908, 1909, 1910 and 1911, and said property and all of same was wholly omitted from assessment for taxation and was not considered or valued or-included in the assessment of defendant’s franchise.

“Plaintiff states that had a full disclosure been made of the property of said defendant company that its franchise assessment on the assessing dates for said purposes, to-wit: on June 30, 1905; June 30, 1906; June 30, 1907; June 30, 1908; June 30, 1909, and June 30, 1910, were worth and of the value of $1,000,000.00 instead of $550,-000.00 for 1906, 1907 and 3908; $625,000.00 for 1909, and $700,000.00 for 1910 and 1911; the sum at which said franchise was assessed against the said defendant company.

“Plaintiff states that the said defendant company in giving in its property for a franchise valuation failed to give the correct value of its accounts, notes and other choses in action, failed to report certain other intangible property owned by it, including its cash in bank and cash in the hands of its agents and collectors. That the-said defendant company failed to give in the true and correct mileage of its pipe lines in Jefferson county, Kentucky, and that there was at least 300 miles of said pipe lines not included in said report. That the said defendant company failed and neglected to give in the pipe lines owned and controlled by it which were nominally in the name of subsidiary companies which had ceased to exist or had a nominal existence and in which said defendant company owned all of the stock and controlled the operations of said companies and said companies had in fact ceased to exist and that said pipe lines and franchises so nominally held in the names of said companies, bnt exercised, used, leased, owned or controlled by the said defendant company were not included with or listed by said company for assessment for taxation or reported to the said Board of Valuation and Assessment. That the fair cash value of the franchise of the said defendant company, taking into consideration the property omitted from assessment for taxation for said years was at least $100,000.00 in excess of the value placed thereon by the said Board of Valuation and Assessment and are known by the said defendant so to be, and that the said Board of Valuation and Assessment had, no chance to pass upon the value of said property and the value of said pipe lines and franchise because said franchise and pipe lines were not disclosed in the reports made by the defendant company to the State Board of Valuation and Assessment and not considered by the said board in making the franchise assessment of the said defendant company.”

Defendant filed motions to strike out and to make more definite and certain the allegations with reference to certain items in both paragraphs of the statement, and filed a demurrer to each paragraph, after which it filed an answer traversing the material allegations of the statements to which, motions to strike had not been sustained.

The plaintiff then took the depositions of Mr. Donald McDonald, president of the defendant, and attempted to prove by him, that the company, upon the assessing dates for the several years involved, was the owner of certain personal property put in issue by the pleadings. These questions referred to both tangible and intangible property.

Upon advise of counsel, the witness declined to answer practically all material questions. Plaintiff then sought an order of court to require the witness to answer the questions, which was refused upon the ground that the record disclosed the fact that all of the property owned by the defendant, both tangible and intangible, had been assessed by the proper assessing officers, and that the proceeding was an effort to re-value assessed property, rather than an effort to assess property that had been omitted from assessment. Upon the same ground, the court, after submission, rendered a judgment dismissing the proceeding at plaintiff’s costs.

The plaintiff, having saved exceptions to all adverse rulings, is prosecuting this appeal.

It is admitted that the defendant filed with the Auditor for each of the years involved, a statement required by law for use of the State Board of Valuation and Assessment in assessing its franchise, and that in each of said years its franchise was assessed by said board, and that the taxes upon those assessments have been paid by the defendant; but it is alleged in the reformed statement filed herein, that the defendant failed to answer, in its reports to the Auditor, or answered incorrectly, questions with .reference to the items of property involved, and that, in consequence thereof, the State Board of Valuation and Assessment, in assessing the defendant’s franchise for each of said years, did not know of, and did not consider, these several items in the assessments it made of defendant’s franchise, and that these items are, therefore, omitted property.

Appellee insists that the value of its franchise includes all of its intangible property, and that after its franchise has been assessed by the proper authority, no item of intangible property is then omitted from assessment. Whether this is true or not is the first of two propositions presented by this appeal. The other proposition is, whether or not tangible personal property that was not assessed by the county assessing authorities can be thereafter assessed as omitted property, againt a corporation whose franchise has been assessed by the State Board of Valuation and Assessment.

Before proceeding to a decision of these two questions, it will be necessary to state briefly several provisions of the law with reference to assessing the property of a domestic corporation, for such is the defendant.

Two methods, by separate taxing authorities, are provided for assessing the corporation’s property. Its tangible property is assessed by the local assessor, whose action is subject to review and revision by the county board of supervisors. Neither the assessor nor the county board of supervisors has any authority to assess any of a corporation’s intangible property. The State Board of Valuation and Assessment assesses the value of the corporation’s franchise, and it has no power to assess any of the corporation’s tangible property. These are the primary assessing authorities provided by our law.

In order to better insure the assessment of all property, revenue agents have been provided for, under seotion 4260, Kentucky Statutes, whose duty it is, by proceedings such as this, to enforce the assessment of any property liable to assessment that may have been omitted by either of the primary assessing authorities; but the authority of these revenue agents is purely supplementary and strictly limited to property not assessed by the primary authorities, and they are without authority to take any action looking to a correction of the assessment of any property made by either regular county or state assessment officers. There is no conflict in authority. The primary assessing authorities have exclusive jurisdiction to assess all property, and the revenue agents have only secondary authority to assess what the primary authorities have not assessed, that is, omitted property. Coulter v. Louisville Bridge Co., 114 Ky. 42; Com. v. Cumberland T. & T. Co., 124 Ky. 535; Chicago, St. L. & N. O. Ry. Co. v. Com., 115 Ky. 278; Albion Co. v. City of Louisville, 117 Ky. 895; Com. v. American Tobacco Co., 29 Ky. Law Rep. 745; First National Bank v. Hopkinsville, 128 Ky. 383; Com. v. Glover, 132 Ky. 588; Com. v. Kentucky Dist. & W’house Co., 143 Ky. 314; Com. v. J. M. Robinson, Norton & Co., 146 Ky. 218.

It has been decided, over and over again, by this court, that the assessment of the “franchise” includes all property of the corporation, except tangible property assessed or liable to assessment. Henderson Bridge Co. v. Com., 99 Ky. 623; Com. v. Cumberland T. & T. Co., supra.

It is very clear from the foregoing authorities, that; if the property sought to be assessed herein was assessed by the primary assessing authorities, this action cannot be maintained, and that the judgment should be affirmed. But it is contended, that, because the defendant, in its reports to the Auditor, did not answer some of the questions at all and denied ownership of any quantity of some items of property about which it was required to give information, such items must be presumed to have been excluded, by the State Board of Valuation and Assessment in assessing the franchise, and that when the revenue agent, in this proceeding, had proven that the corporation did own items of intangible property not disclosed by it in its report to the Auditor, the burden was then upon the corporation to show that the assessment of the franchise included these omitted items. But we are unable to consent to the application of this rule here because, as we have seen, the franchise assessment does include all of the corporation’s intangible property. This being true, it inevitably follows that, in assessing the franchise, the state has assessed all intangible property; none of it is omitted. There is no law for assessing a corporation’s intangible property, except by assessing its franchise, which is to be done primarily by the State [Board of Valuation and Assessment, and upon its failure so to do, then, and then only, by the revenue agents.

This does not mean, and it does not follow, that because the state may not, through its revenue agents, revise and correct an erroneous or fraudulent franchise assessment made by the State Board of Valuation and Assessment, no remedy exists. It is simply decided here, that this proceeding, by a revenue agent, is not a proper method under the law for relief from erroneous assessments resulting from fraud or mistake. Neither is the question involved hereof what shall be the consequences to the corporation and its officers, in a proper proceeding, for any fraud or criminal act they may have perpetrated in making false statements in the reports to the Auditor which are considered by the State Board of Valuation and Assessment in fixing the value of the franchise for assessment.

This court has recognized in numerous cases, the right of the property owner, in a proper proceeding, to correct an erroneous assessment resulting from either fraud or mistake on the part of the board; and the state ought to have, and undoubtedly has, the same right to correct an erroneous assessment resulting from fraud or mistake upon the part of the taxpayer, but the fact such a right has never been exercised or pointed out, so far as any reported case discloses, does not authorize permission to so do in such a-proceeding as this, since the statute defining the powers of revenue agents clearly forbids it. Section 4260 of the statutes provides that omitted property brought to light by revenue agents shall be assessed by the courts and certified to the proper authorities for the collection of taxes thereon; their action in assessing omitted property is final, and there is no authority whatever in that or any other section for a reconsideration of any such assessment, by any other assessing authority.

Of course the legislature could have authorized an: action by the revenue agent as relator on behalf of the. state to sue within the five year, or any other, limitation period for the purpose of reviewing an incorrect assess-. ment resulting from fraud or mistake, but this it did not do under section 4260, the only statute authorizing the revenue agent to sue, and he, therefore, has no such authority. Not having been clothed with authority to act as relator for the state to open up an assessment incorrectly made by the proper authorities, the case of Commonwealth v. Helm, 163 Ky. 69, is manifestly not in point.

Confusion will be avoided if we keep in mind that the only “item” or unit of property assessable by the state board is the “franchise” of a corporation, while the “items” or unit of intangible property assessable by the local assessor are “accounts,” “stocks” etc., of an individual. When either authority assesses an item or unit of property it is authorized to assess, the revenue agent can neither assess that item nor have corrected such assessment even if erroneous. If the assessor assesses 44 stocks, ’ ’ but not4 4 accounts, ’’ owned by an individual his “accounts” are omitted, but if the state board assesses a corporation’s "franchise” it has assessed all of its "stocks” and "accounts,” because franchise includes both stocks and accounts. In other words, no "item” assessable against a corporation that the state board can assess has been omitted.

The action of the Board of Valuation and Assessment in assessing the franchise excludes the right of revenue agents to assess it, or any of its parts, and the board’s action when it has assessed the franchise is final except for fraud or mistake upon the part of either the state’s agents or the property owner; and for fraud or mistake the revision permissible is by direct attack to set it aside; it cannot be ignored by either the state or the property owner, or reviewed and corrected in an entirely independent and collateral proceeding such as this. That this is an effort, in so far as it attempts to assess intangible property, to revise and correct the valuation;' of the defendant’s franchise, as fixed by the State Board; of Valuation and Assessment, is entirely clear from the allegations we have copied above from the second paragraph of the plaintiff’s statement. Even if it is true that the board did not consider these items of intangible property, as alleged, it results only that the board did not correctly assess the "franchise,” the only thing it could assess, if it proceeded under one of several methods of valuation open to it, and, as a “franchise” is an-entity, as the .term is used for assessment purposes, made up of the many items of a corporation’s intangible property, just as are the terms “accounts,” used to designate the individual’s items of intangible property, etc., when the franchise is assessed the assessment must necessarily cover all of its constituent elements. We are unable to see how it can be said, when the ‘ ‘ franchise ” of a corporation has been assessed as a whole, that any of its parts have been omitted, if when some “accounts” of an individual have been assessed, no accounts can be said to have been omitted. In both instances frauds are possible and frequent, but neither can be investigated or cor^ rected by revenue agents under their limited statutory; powers. Nor is the opportunity for profit to a corporation from fraudulent reports to the Auditor of the value' of its “franchise” any greater or any different than the opportunity of the individual to profit by fraud in listing his “'accounts” or “stock,” etc., with the assessor, unless it be that deception of the corporation may involve larger values than that of the individual. Both the report of the corporation and that of the individual are but evidence to be considered by the proper assessing authority in an effort to correctly value property, and the values so fixed are alike open to attack only in a direct, proceeding, but closed to investigation' in a collateral attack.

Not only does the statute authorizing the assessment by the revenue agents specifically confine such assessment to omitted property, but such limitation is in accord1 with all recognized rules of procedure. A collateral attack is never permitted upon a judicial or quasi-judicial finding, even for fraud or mistake. This proceeding is nothing more or less than a collateral attack upon the action of the State Board of Yaluation and Assessment in fixing the value of the defendant’s franchise, for that is all it could assess, and hence all it could omit from assessment.

In Chicago, St. L. & N. O. Ry. Co. v. Com., supra, this court said:

“The action of the board was conclusive, and, after the éxpiration of the time for hearing complaints for reduction, was binding alike upon the state and the railway companies.”

The following is taken from Albion Co. v. City of Louisville, supra:

“The statute confides these questions of value to the board of equalization, and the court has no power (at the instance of the property owner) to review its conclusions in that respect unless the hoard has proceeded corruptly and fraudulently. . . .”

In Henderson Bridge Company v. Com., supra, we find:

“It should be further said that the findings of this board of valuation and assessment partake of a judicial nature.”

That the findings of this board do partake of a judicial nature, if not conclusively established by these authorities, is fully demonstrated by section 4079 of the Kentucky Statutes, authorizing its action, which provides that, in addition to the information furnished by the reports corporations are required to make, the board may consider other evidence, and may excuse a corporation from answering such questions as it may see fit. The board is not confined, in valuing the franchises of domestic corporations, to any particular method, except that the franchise is the value of all property less tangible property; and the information furnished by answers to all of the questions in the report the corporation is required to make furnishes information necessarily permitting the valuation upon one of several independent and different bases, viz: the earning’ capacity of the corporation, the market value of the capital stock, and by adding up the value of items of property, and possibly other methods. It cannot be doubted that the board, under this statute, has ample power to compel a corporation to supply any omission in the report it has filed, as well as to excuse it from answering certain questions, and has full discretion in considering both the evidence heard and the 'method to be adopted in fixing the value of the franchise, and when, in the exercise of this discretion, it has assessed the franchise, that assessment is final, except in a direct proceeding for fraud or mistake, whether by the state or property owner. Defendant’s franchise was assessed for each of the years involved here, and the intangible property now attempted to be assessed is unquestionably a part of the franchise. Whether or not these particular items of intangible property were considered by the board in assessing the franchise does not alter the fact that the franchise was assessed, but can prove only, if anything, that it was incorrectly assessed.

We are unable to see any difference in principle between the question involved here and that before the court in Com. v. J. M. Robinson, Norton & Co., supra, [wherein it was attempted, by a revenue agent, to assess, at omitted property, certain accounts and other personal property, the true value of the accounts alleged to he $1,339,000.00, hut listed only at $720,000.00, and the court held, that, having assessed “accounts,” an investigation was not authorized, to ascertain whether or not all of the accounts owned were included in the assessment; that all of the items of property that could he classified as accounts must he considered to have been assessed, and none of the accounts owned by the party could be said to be omitted property. This can mean only that when one classification of property has been assessed, however erroneously done, that class of property is foreclosed to investigation by a revenue agent, in such a proceeding as this. There was cited in that opinion, as illustrative of the fact that the assessment of the whole included all of its parts, among other cases, the ease of First National Hank v. Hopkinsville, supra, in which an attempt was made in a collateral proceeding to review the action of a proper taxing-board in the assessment of a franchise, upon the ground that the taxing board had erroneously failed to exclude from the assessment exempted government bonds, but this was refused by the court, upon the ground that it was an effort to correct the assessment of a franchise upon the ground that it was too high, and that the assessment having been made by the proper officers and approved by the board provided by law, and no complaint having been made within the time prescribed by law, their action was conclusive upon the parties. It would be hard to understand how, under similar circumstances, the state could be allowed to correct the assessment of a franchise upon the ground that it was too low because of the failure of the board to consider certain constituent parts thereof, if the property owner may not have the valuation lowered when certain property has erroneously been included in the franchise valuation.

Our attention has been called- to the case of Commonwealth v. Louisville Gas Co., 135 Ky. 324, as authority for this proceeding, but in that case the court decided that no property was omitted because the report of that corporation disclosed its earnings from all of its property just as the report of this corporation exhibited its earnings from all of its property, so that the judgment in that case sustains rather than opposes our conclusion. It is true that it was said in that opinion that an omission to report by an individual all of a class of his property such as notes, and the failure of a corporation to report all items of its intangible property constituting its franchise, would warrant an assessment by a revenue agent as omitted property, the nnreported parts of such properties, but that question was not up in that case as the court found there was no omitted property involved, and when that question was presented for decision in the case of Commonwealth v. J. M. Robinson, Norton & Co., supra, this court, ignoring the dictum in the Louisville Gas Co. case, held that when a part of a class or unit of intangible property had been assessed against an individual that class was closed to a revenue agent’s investigar tion. The same reasoning affects similarly a corporation’s intangible property assessable under the classification franchise. If the dictum in the Louisville Gas Co. case was not to be accepted in the Robinson, Norton Co. case, it ought not to be regarded as authority in this.

The case of Commonwealth v. Adams Express Co. is not authority here, for in that case the franchise had not been assessed but was omitted, and therefore assessable by the revenue agent, and under such circumstances the duty devolved, of course, upon the corporation in that action to furnish the same information to the court that it ought to have furnished the State Board of Valuation and Assessment.

Convinced that this proceeding was an effort upon the part of the revenue agent, in so far as intangible property was concerned, to review the assessment made by the Board of Valuation and Assessment of defendant’s franchise, it follows that the lower court correctly dismissed so much of the petition.

2. In assessing a domestic corporation’s franchise, the State Board of Valuation and Assessment is required to fin'd the value of all of the company’s property, of every kind, and from the amount so found to deduct the value of its tangible property, assessed or liable to assessment. The lower court was of the opinion that, since the state board had valued the franchise by deducting from the amount of all the corporation’s property the amount of its tangible property, if tangible property had been omitted from assessment, that fact was immaterial, because the omission had resulted in an assessment of the franchise, to the extent of the omitted tangible property, higher than its real value, and that the state, having collected taxes upon this excess in the valuation of the franchise, was not hurt by the omission to assess the tangible property, since, if assessed, it would reduce, in exactly the same amount, the value of the franchise. In this we think the court was clearly in error. In the first place, it is shown by the company’s reports and the findings of the State Board of Valuation and Assessment, that the company reported the value of its tangible property for the year 1910 at $600,000.00; that the board fixed the value of all of its property for that year at $1,300,000.00, and assessed its franchise at $700,000.00, which is the difference between the value of all of the property, as found by the board, and the value of its tangible property, as fixed by the company’s report to the Auditor; yet we find, from a copy of the assessment in the evidence, that for that year the company, in fact, was assessed with no tangible property whatever. In other words, the company got credit on the valuation of its franchise, for $600,000.00 worth of tangible property liable to assessment, but was actually assessed with no such property. It is, therefore, apparent that, if the company reported correctly to the State Board of Valuation and Assessment its tangible property, it omitted from assessment a large quantity of such property. In the other years involved, the company did assess some tangible property, although in a much less amount than it had reported its value to the State Board of Valuation and Assessment; but this discrepancy in amounts does not prove that any of such property was omitted; however, for each of these years it is alleged that certain specified items of tangible property were omitted, and proof of the truth of this allegation, as to some of these items, at least, is furnished by the assessments for such years, because no such items ¡were listed.

Moreover, if the state cannot, in this kind of a proceeding, correct an erroneous assessment of the franchise, for the same reasons defendant cannot take advantage of another error in the same assessment, to defeat the right of the state, through its revenue agent, to assess any tangible property which was, in fact, omitted from assessment. Besides, the State Board of Valuation and Assessment had no right or authority to assess any tangible property. It could only assess the franchise, and the fact that it had erroneously assessed the franchise by including in its value tangible property, gave to_ the company only.a right to correct that assessment, in a proper proceeding, and did not excuse it from assessing, with the proper authorities, its tangible property, and, offers no defense against a proper assessment of the tangible property. To the extent the opinion in Com. v. Southern Pacific Co., 150 Ky. 109, is in conflict herewith it is overruled. Whatever items of tangible property it failed to assess with the proper authorities, the revenue agent, in this proceeding, had a right to have assessed, regardless of any error in the franchise assessment, and under sub-section 8 of section 606 of the Civil Code, had a right to examine, as upon cross-examination, the company’s president, to prove the ownership of any such property and its omission from assessment.

The lower court, therefore, erred in refusing to require Mr. McDonald to answer the questions in reference to the company’s tangible property, upon such items as had not been assessed by the proper taxing authorities.

Nor will the company be permitted to hide behind its small assessment of unclassified property. Items that were not specifically assessed will be presumed to have been omitted, but from such omitted items as may be uncovered the company may have deducted, as a credit, the amount it assessed as unclassified property.

We feel that we should say, before closing this opinion, that no property owner should, or will, be permitted to profit by his own fraud, practiced in the assessment of his property, whenever, in a proper action, the state, by its proper officers, discloses an error resulting from such fraud; but to obtain this much desired end, the state, like any other litigant, must employ seasonably the proper procedure. It cannot permit an erroneous assessment to become final by inaction, and then, in a collateral proceeding, disturb the final action of regularly constituted authorities. If fraud was practiced by the defendant in procuring its franchise assessment for the years involved, as alleged, the state had ample opportunity to have these assessments corrected before they became final, and that it did not do so affords no reason now for having reviewed, through its revenue agents, who are limited to assessing omitted property, the findings of the State Board of Valuation and Assessment, upon a question delegated by law to its discretion.

For the reasons indicated, the judgment is reversed, and the cause remanded for further proceedings consistent herewith.

The whole court sitting. Judge Carroll dissents.