Opinion
No. 39848.
December 19, 1955.
1. Penalties — appeal to Circuit Court from tax assessment — statutes — strictly construed.
The statute providing for a ten per cent penalty where the appeal from a tax assessment has been decided against a person who appealed should be confined to its specific terms and strictly construed. Sec. 1196, Code 1942.
2. Taxation — appeal from assessment — voluntary dismissal — penalty statute construed.
Where taxpayer appealed to the Circuit Court from an assessment on personal property taxes and before the case came on for trial de novo to be decided on its merits, Court dismissed the case on taxpayer's own motion, the case was not "decided" against the taxpayer in the Circuit Court within the meaning of the statute referred to in Headnote No. 1, so as to result in the imposition of the ten per cent penalty upon the appealing taxpayer.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Jackson County; LESLIE B. GRANT, Judge.
Karl Wiesenburg, Pascagoula, for appellant.
I. The Circuit Court erred in failing to sustain the motion of the City for the imposition of the ten per cent penalty authorized by Section 1196 of the Mississippi Code of 1942. McArdle's Estate v. City of Jackson (Miss.), 63 So.2d 101; Sec. 1196, Code 1942.
Watts Colmer, Pascagoula, for appellee.
I. The appellant is not entitled to the statutory penalty where the taxpayer voluntarily dismisses his appeal prior to a determination of the matter on its merits. Atkinson Bacot Co. v. Pike County, 73 Miss. 348, 18 So. 924; Farmers' Oil Mfg. Co. v. Melton Stuart, 159 Ala. 469, 49 So. 225; McArdle's Estate v. City of Jackson (Miss.), 63 So.2d 101; Payne v. Stevens, 125 Miss. 582, 88 So. 165; Rives v. Starcke, 195 La. 378, 196 So. 657; Wells v. Bullock, 192 Miss. 347, 5 So.2d 686; Secs. 1196, 1538, Code 1942; 17 Am. Jur., Dismissal and Discontinuance, Sec. 63; 18 C.J., Dismissal and Nonsuit, Secs. 1-2.
Appellee, Advertiser Publishing Company, Inc., appealed to the Circuit Court of Jackson County from an assessment by the City of Pascagoula of the company's 1953 personal property taxes. The appeal was taken under Code of 1942, Sec. 1196, which provides in part: ". . . the controversy shall be tried anew in the circuit court at the first term, and be a preference case, and, if the matter be decided against the person who appealed, judgment shall be rendered on the appeal bond for damages at the rate of ten per centum on that amount in controversy and all costs."
Before the case came on for trial de novo in the circuit court, the company, taxpayer and appellant in that court, filed a motion to dismiss its appeal from the City's assessment. The circuit court sustained that motion, dismissed the cause, and assessed against the company and the surety on its appeal bond the accrued costs. The City filed a motion to assess the company with 10 percent damages under Code Sec. 1196, but it was overruled by the circuit court. The City appeals to this Court, claiming that the trial court erred in refusing to assess 10 percent damages. Appellant contends that the purpose of the 10 percent penalty is to penalize unsuccessful appellants for frivolous appeals from tax assessments, and that there was a final judgment in the circuit court dismissing the appeal.
(Hn 1) Code Sec. 1196 provides for a 10 percent penalty where the appeal from the tax assessment has been "decided against the person who appealed". This penalty should be confined to its specific terms and strictly construed. The taxpayer, appellee here, had the right to voluntarily dismiss its appeal to the circuit court. Code 1942, Sec. 1538; Wolf v. Mississippi Valley Trust Co., 130 Miss. 144, 93 So. 581 (1922); Zerkowsky v. Zerkowsky, 160 Miss. 278, 131 So. 647 (1931); Harris v. Stewart, 187 Miss. 489, 501-502, 193 So. 339 (1939). (Hn 2) We do not think that the case was "decided" against the taxpayer in the circuit court within the meaning of Sec. 1196, so as to result in imposition of the 10 percent penalty upon the appealing taxpayer. The case was voluntarily dismissed, it was not tried de novo or decided on its merits, and hence it was not within the classification of unsuccessful appeals subject to the 10 percent penalty.
Affirmed.
Roberds, P.J., and Lee, Holmes and Arrington, JJ., concur.