State ex rel. Maxwell v. Hinsdale, 207 N.C. 37 (1934)

Sept. 19, 1934 · Supreme Court of North Carolina

207 N.C. 37

STATE OF NORTH CAROLINA on Relation of A. J. MAXWELL, Commissioner of Revenue, v. S. J. HINSDALE, M. W. McPHERSON and R. H. ANDREWS, Trustees in Bankruptcy of CENTRAL LOAN AND TRUST COMPANY, Bankrupt.

(Filed 19 September, 1934.)

Taxation. E c — Claim for refund of income taxes held barred by failure to make application for revision within three years from return.

Where a taxpayer, claiming a refund for overpayment of income taxes to the State by reason of error in its return, fails to apply to the Commissioner of Revenue for a revision within three years from the filing of its return, its claim is barred, N. C. Code, 7880 (155), nor will the fact that the application for a revision is made within three years of rede-termination of income tax by the Federal Government avail the taxpayer where he does not make a new return within thirty days after such rede-termination by the Federal Government, N. C. Code, 7880 (152), since the limitation prescribed by N. O. Code, 7880 (155), is explicit and unequivocal, and since the procedure prescribed by N. C. Code, 7880 (155), that such new return be made within thirty days of redetermination by the Federal Government is exclusive and must be followed -to entitle the taxpayer to the relief therein provided.

Schenck, J., took no part in the consideration or decision of this case.

Civil action, before Devin, J., 13 February, 1934. From AlamaNCe.

Tbe Central Loan and Trust Company paid income taxes to the State of North Carolina as follows: From 1 December, 1922, to 30 November, 1923, $1,305.40; from 1 December, 1923, to 30 November, 1924, $1,243.77; from 1 December, 1924, to 30 November, 1925, $1,502.63.

The taxpayer thereafter became a bankrupt, and the trustees of said bankrupt asserted that they were entitled to a refund of taxes for said years by reason of the fact that in the return of the taxpayer there was “erroneously included as income the annual appreciation of unsold real estate over cost price. This statement was made in return filed with tbe Commissioner of Revenue for tbe State of North Carolina, and tbe erroneous tax was paid to said Commissioner.”

On 3 December, 1929, tbe Federal Government redetermined tbe taxes due “by said bankrupt for said years, and made refund of Federal taxes erroneously collected because of a like erroneous overstatement in tbe return made to tbe Federal Government.” More tban two years thereafter, to wit, oil 30 December, 1932, tbe bankrupt, through its trustees, “filed with the Commissioner of Revenue for tbe State of North Carolina . . . claims for a refund of taxes paid by tbe Central Loan and Trust Company.” It was stipulated “that there was no return oath made to tbe Commissioner of Revenue after tbe redetermination made by tbe Federal Government until 30 December, 1932.”

Tbe Commissioner of Revenue declined to order tbe refund and rejected tbe claim, asserting that on account of tbe lapse of time all records “pertaining to tbe years at issue were, under authority of statute, destroyed,” etc. Tbe taxpayer appealed from tbe ruling of tbe Revenue Commissioner to tbe judge of tbe Superior Court, who disallowed tbe claim and affirmed tbe ruling of tbe Revenue Commissioner. Thereupon tbe trustees in bankruptcy appealed to tbe Supreme Court.

Edwin Martenet for trustees in bankruptcy.

Attorney-General Brummitt and Assistants Attorneys-General Seawell and Bruton for Commissioner of Revenue.

BeogdeN, J.

C. S., 7880 (155), provides that “a taxpayer may apply to tbe Commissioner of Revenue for revision of tax assessed against him at any time within three years from tbe time of tbe filing of tbe return or from tbe date of tbe notice of tbe assessment of any additional tax,” etc. Tbe record discloses that tbe taxpayer filed no claim with tbe Commissioner of Revenue for tbe revision of said tax until 30 December, 1932, which was more tban three years from tbe date required for tbe filing of income tax returns. Tbe taxpayer, however, asserts that tbe three-year limitation begins to run from tbe date of tbe redetermination by tbe Federal Government, as provided in C. S., Michie’s Code of 1931, 7880 (152), and that as such action was taken on 3 December, 1929, tbe claim is not barred. This contention, however, cannot be sustained for tbe reason that tbe statute of limitations above referred to is explicit and unequivocal. Moreover, tbe taxpayer is not saved by tbe application of C. S., 7880 (152), supra, for tbe reason that this statute provides that “such taxpayer, within thirty days after receipt of final determination by tbe United States Government of bis corrected net income, shall make return under oath or affirmation to tbe Commissioner of Revenue of such final determined income.” Tbe new return contení-plated by tbe foregoing statute was not made by tbe bankrupt until 30 December, 1932. Therefore, there was a total failure to comply with the positive provision of the law. It was said in Association v. Strickland, 200 N. C., 630, 158 S. E., 110, that “the courts everywhere are in accord with the proposition that if a valid statutory method of determining a disputed question has been established, such remedy so provided is exclusive, and must be first resorted to, and in the manner specified therein.” See Mann v. North Carolina State Board of Examiners in Optometry, 206 N. C., 853.

Affirmed.

SciieNCK, J., took no part in the consideration or decision of this case.