Opinion
6 Div. 594.
April 10, 1941.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
London Yancey and Frederick Koenig, Jr., all of Birmingham, for appellant.
The tax situs of the property upon which an escape assessment is sought to be made on behalf of the City of Birmingham is in School District 2-A (Birmingham Port) so that the City of Birmingham has no taxable interest in the property and no escape assessment can be made in its behalf. Tennessee Coal, Iron R. Co. v. State, 239 Ala. 19, 193 So. 43; Anniston City Land Co. v. State, 185 Ala. 482, 64 So. 110; State v. Doster-Northington Drug Co., 196 Ala. 447, 71 So. 427; Bower v. American Lumber Export Co., 195 Ala. 572, 71 So. 100; State ex rel. Tallapoosa County v. Butler, 227 Ala. 212, 149 So. 101. Action of the tax assessor in allocating the property, against which escape assessment is now sought, to School District 2-A, is a judicial determination that the tax situs of the property is in School District 2-A and not in the City of Birmingham. Authorities, supra; Acts 1911, p. 132, § 6. Even if it were held that the property was properly returnable and returned in the Birmingham Division of Jefferson County, the property is still not subject to taxes by way of an escape assessment which is sought to be placed against it. The property was duly and legally returned by the taxpayer for each of the tax years, in the county where the principal office of the corporate taxpayer is located; the taxes were duly and legally paid for each year; such assessments were not contested or disturbed before the close of the respective years; the assessments became final and cannot now be disturbed by the taxing authorities. Authorities, supra; State v. Realty Loan Co., 209 Ala. 559, 96 So. 613; State v. Mortgage-Bond Co., 224 Ala. 406, 140 So. 365.
J. H. Willis, of Birmingham, for appellee.
This is an appeal from an escape tax assessment made by the tax assessor of Jefferson County, Alabama, against certain boats and barges owned by the appellant taxpayer, and its predecessor in title. The assessment was for escape taxes for the years 1934 through 1938, both inclusive, and was made final by the judgment of the Circuit Court of Jefferson County upon appeal from the final assessment of the tax assessor.
The question before the Court is the power of the tax assessor for Jefferson County to make an escape assessment after the end of the tax year of 1934 through 1938, both inclusive, for the City of Birmingham on personal property returned and assessed for taxation, and upon which assessment the yearly taxes have been paid, and allocated by the tax assessor to School District 2-A, a district outside of the City of Birmingham.
The facts in the instant case, except in one particular, are identical with those in the case of Tennessee Coal, Iron Railroad Company v. State, 239 Ala. 19, 193 So. 143, 151. The one difference being that in the Tennessee Coal, Iron Railroad Company case, supra, the tax return of the boats and barges was made in the Bessemer Division of Jefferson County, while in the instant case the tax return of the boats and barges was made in the Birmingham Division of Jefferson County. In both cases the boats and barges operate out of the Birmingham port on navigable rivers of the State, and have been so engaged for a number of years. They are owned by corporations whose principal offices in this State are in the City of Birmingham; and in neither case have the boats and barges ever entered or operated within the physical limits of the City of Birmingham.
In the case of Tennessee Coal, Iron Railroad Company v. State, supra, this Court said: "Having in view the several Constitutions hereinabove indicated, the significant change in the Constitution of 1901 (Article XI, § 216) from that indicated in Article XI, § 7 of the Constitution of 1875; the several sections of the revenue acts touching the peculiar property here dealt with; adverting to the fact that the instant corporation had its head office located in the State of Tennessee, its principal business office located in the County of Jefferson and municipality of Birmingham, and its port, from which its watercrafts navigate in the Bessemer Division of the County of Jefferson wherein its principal business office is located, the assessments were duly declared. That is to say, a harmonious construction of these statutes, under the Constitution, requires that the assessment of appellants' watercrafts should be, and were, properly returned at Bessemer, the division of Jefferson County where its only and essential navigating point, docks and wharves are located."
This is decisive of the appeal here under consideration. The fact that the watercrafts in the instant case were returned for assessment in the Birmingham Division of Jefferson County instead of the Bessemer Division, as they should have been, can give the City of Birmingham no rights that it would not have had, had the return been properly made. The situs of the property being outside of the City of Birmingham, the city had no taxing interest in it insofar as this record discloses.
It follows from the foregoing that the trial court erred in rendering a judgment against appellant; and that judgment is therefore reversed and one here rendered for the appellant, the Pure Oil Company.
Reversed and rendered.
GARDNER, C. J., and BOULDIN and FOSTER, JJ., concur.