Opinion
6 Div. 643.
March 14, 1940. Rehearing Denied April 11, 1940.
Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.
Thos. S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for appellant.
One claiming exemption has the burden of establishing his right thereto. Bowman v. State Tax Comm., 235 Ala. 190, 178 So. 216. Exemptions from taxation must be strictly construed in favor of the taxing power, and exemptions not clearly within the import of a statute must be rejected. State v. Tuscaloosa C. S. O. Co., 208 Ala. 610, 95 So. 52; Bowman v. State Tax Comm., supra; Holt v. Long, 234 Ala. 369, 174 So. 759; Cooley, Taxation (3d Ed.) p. 357; State v. Elba Bank Trust Co., 18 Ala. App. 253, 91 So. 917; Id., 207 Ala. 711, 91 So. 922; 18 Alabama Digest, Taxation, 204(2). The provisions of sections 44-52 of the Revenue Act of 1927, being the later expression of the legislative will and covering the entire subject-matter of the portion of the 1919 Revenue Act involved, and clearly intended as a substitute for it, repealed such 1919 provision regardless of the inconsistency or repugnancy of the statute. State v. Kirkpatrick, 19 Ala. App. 50, 95 So. 490; Ex parte State, 209 Ala. 16, 95 So. 494; State v. Matthews, 209 Ala. 193, 95 So. 890; Allgood v. Sloss-S. S. I. Co., 196 Ala. 500, 71 So. 724; Levy, c. v. Jones, 208 Ala. 104, 93 So. 733. The intention of the legislature is the law. Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159.
Alta L. King, of Birmingham, for appellee.
The Revenue Act of 1919 specifically exempts individual stockholders of public utility corporations, companies or associations, from the listing of their shares of stock for taxation and payment of ad valorem taxes thereon, where such utilities themselves have assessed for taxation all their property in the State, tangible and intangible, and paid all ad valorem taxes due thereon as required by law. Gen.Acts 1919, P. 339, § 185. The Registration of Securities Act of 1927 is not in conflict with and does not repeal Section 185 of the Revenue Act of 1919, but provides an exemption from ad valorem taxation for holders of securities in all foreign corporations not specifically exempted by said section 185, who list them with the State Tax Commission and pay the small fee therefor; and also extends said exemption to include holders of securities in foreign utility corporations who own no property and pay no taxes in the State or, owning property in the State and failing to assess it for ad valorem taxation and pay the taxes thereon, because said section 185 does not include and protect such shareholders. Gen.Acts 1927, pp. 175-6, §§ 44-52; State v. Matthews, 209 Ala. 193, 95 So. 890; Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159. Repeal by implication is not favored. Mills v. Court of Com'rs, 204 Ala. 40, 85 So. 564; Ex parte State, 203 Ala. 444, 83 So. 334; Ex parte Jones, 212 Ala. 259, 102 So. 234; Fidelity Dep. Co. v. Farmers' Hardware Co., 223 Ala. 477, 136 So. 824; State v. Matthews, supra; Birmingham v. Southern Express Co., supra. Reenactment of the provisions of sections 44 to 52 of the 1927 Act, as sections 337 to 344 of the 1935 Act, and also reenactment of section 185 of the 1919 Act, as section 133 of the Act of 1935, is sufficient evidence of the fact that the legislature intended a function for each of said Acts, independent of the other, and they are in no sense repugnant to each other.
"Shares of stock in companies or associations, not incorporated under the laws of this State, except stock in national banks," owned by residents of this State, are listed as subjects of taxation by the General Revenue Law of 1919. Acts 1919, p. 286, § 5, Subsection i.
Section 185 of said act provides: "So long as any corporation, company or association shall pay all ad valorem taxes on said property required by law, the individual stock holders thereof shall not be required to list their shares of stock for taxation, or to pay ad valorem taxes on said shares." Acts 1919, p. 339, § 185. [Italics supplied.]
Act No. 163, entitled "An Act In Reference to and to Further Provide for the General Revenue of the State of Alabama," approved July 22, 1927, provides for listing and registration of "securities" with the State Tax Commission — now the Department of Revenue — upon payment by the owner of a nominal "privilege or license tax." "Securities" as defined by the act consist of "capital stock, stock certificates, voting trust certificates, bonds, notes, debentures or similar evidences of indebtedness of any foreign corporation, and bonds, warrants, notes, debentures or other evidences of indebtedness of any state or of any government or g evernmental subdivision other than the State of Alabama." Acts 1927, p. 174, § 44.
Section 51, Subdivision (d), p. 176, provides: "There shall be no ad valorem tax assessed or collected upon any security included in any list on account of which the tax prescribed by this act shall have been paid, either State, county, or municipal, either for the year in which listed, or for any preceding year, and such listing and payment shall on and after the date thereof be a bar to any legal proceedings by or on behalf of the State or any county or municipality of the State for the enforcement or collection of any escape taxes on account of the security included in any such list." General Acts 1927.
The appellee, a resident of this state, residing in the city of Birmingham, at the beginning of the tax year, 1929, and the several succeeding tax years, including 1933, was the owner of two shares of American Telephone Telegraph Company Stock, which he did not list and register. Said corporation is a non-resident public service corporation, but owns property in this state and paid all ad valorem taxes on said property required by law to be paid by it.
Assuming, for the sake of argument, that the conditional exemption embodied in § 185, of the Act of 1919, was not repealed by § 3022 of the Code of 1923, which provides: "The following property and persons shall be exempt from ad valorem taxation and none other," and which in the enumeration does not include stocks or bonds of foreign corporations owned and held by residents of this state; we are of opinion that it was repealed by said Act No. 163, which provided for and required a listing of such stocks by resident owners. [Italics supplied.]
Section 81 of said Act No. 163, p. 187, provides: " All laws in conflict with the provisions of this Act are hereby repealed, provided that all provisions of existing laws relating to taxation and revenue which are not in conflict with the provisions of this Act and which are not herein expressly repealed, are not hereby repealed. [Italics supplied.]" The proviso did not detract from the expressed repealing clause.
Moreover, said § 3022 of the Code, dealt expressly with the subject of exemption from taxation and covered the entire subject, without excepting the class of property owned by appellee.
We are not impressed by the argument that the re-enactment of the conditional exemption embodied in said § 185 of the Act of 1919, conceding though not holding that § 133 of the General Revenue Law of 1935, p. 321, was such re-enactment — evidenced a legislative intent not to repeal such conditional exemption by the Act of 1927.
The judgment of the circuit court of Jefferson County is reversed and one here rendered denying appellee's exceptions to the levy, and sustaining the ruling of the deputy tax assessor in respect thereto.
Reversed and rendered.
ANDERSON, C. J., and THOMAS and KNIGHT, J., concur.