
    DISTRIBUTION OF COLLATERAL INHERITANCE TAX.
    Common Pleas Court of Greene County.
    State of Ohio, ex rel Trustees of New Jasper Township, v. Amos E. Faulkner, as Auditor et al.
    Decided, April, 1915.
    
      Taxation — Construction of Section 5331, Giving Fifty Per Cent, of Collateral Inheritance Tax to the Locality Where the Tax Originated.
    
    Collateral inheritance tax assessed 'against realty originates in the city, village, or township wherein such realty is located, and the city, village, or township wherein the same is located is entitled to receive one-half of said tax regardless of where the residence of the decedent was at the time of his death, or that of his representative.
    
      Marcus Shoup and H. D. Smith, for plaintiff.
    
      F. L. Johnson, contra.
   Kyle, J.

Rufus EE. Ballard died intestate on the 14th day of September, 1914, in the village of Jamestown, Greene county, Ohio, where he had been a resident for some time before his death. An administrator was duly appointed, and by reason of his estate passing to collateral heirs it was subject to the inheritance tax law.

At the time of his death he was the owner of 160 acres and the undivided one-third interest in 219 acres of land situate in New Jasper township, Greene county, Ohio. The administrator of his estate paid the inheritance tax on the lands situated in New Jasper township, in the sum of $1,063, into the county treasury. The trustees of New Jasper township bring this action in mandamus against the defendants, the county auditor and county treasurer of Greene county, for an order commanding them to pay 50 per cent, of such collateral inheritance tax, amounting to $531.50, to the relators as representatives of said New Jasper township.

Under the former inheritance law 25 per cent, of the collateral inheritance tax was ordered paid to the use of the county wherein it was collected. Since the adoption of the amendment to the Constitution relative to the distribution of the income and collateral inheritance tax the Legislature passed Section 5331, which provided that “50 per cent, of such tax shall go to city, village or township in which said tax originates. ’ ”

Rufus IT. Ballard having died in the village of Jamestown and the land upon which the tax was collected was situate in New Jasper township, the question presented calls for a construction of that section which directs that ‘ ‘ 50 per cent, of the tax shall go to the city, village or township in which said tax originates.” If the tax could be said to originate at the place of the residence of the deceased then the share that did not go to the state would go to the city, village or township where the decedent was a resident at the time of his death.

In this case the collateral inheritance tax was- the amount assessed against the realty, and if the tax could be said to originate where the property made the subject of taxation is located then the location of the property subject to taxation would fix the city, village, or township which was to receive the one-half of the collateral inheritance tax, regardless of where the residence of the decedent was at the time of his death.

The language of the statute, Section 5331, provides that “all property within the jurisdiction of this state, and any interest therein, whether belonging to the inhabitants of this state or not * * * shall be liable to a tax of five per cent, of its value above the sum of five hundred dollars.”

If the residence of the owner determined the city, village or township which was to receive the portion of the inheritance tax, -then there could be no inheritance tax where the owner was a non-resident of the state. In the case of a non-resident the place where the land was located would be where the tax originated, as it could not be supposed for a moment that that tax would be assessed to be forwarded to the former residence of a decedent beyond the state, and if such tax could be paid into the locality where the real estate was situated as the place where the tax originated there would be no reason for applying any other rule of construction when the decedent resided in a different city, village or township other than where the realty is situated.

CbHateral inheritance tax is not a tax on the right of inheritance, but is a direct tax upon the property wherever found. The liability for the tax arises after the death of the decedent. The property vests immediately upon the death of the decedent, and the charge for collateral inheritance tax is an incident to such property in the hands of such distributee.

In this case the property vested in the collateral heir. As there ivas sufficient personal property to pay the debts, the administrator had no charge of or control over such realty and the right to tax arose upon the vesting of the title in the collateral heir.

AVhen the proper conditions arise the tax at once attaches upon the property as a lien.

I think it was intended by the Constitution that so far as realty is concerned — which is the subject of the consideration in this case — that the tax should be paid into the city, village or township where the realty ivas situated. In that respect it would simply follow the rule as to all taxation of lands which have to be paid for the benefit of the city, village or township where situated regardless of the place of residence of the owner.

It. might be claimed that because the administrator must pay the tax, therefore, the fund originates at the place of residence of the executor, or representative of the estate. The tax originated with the land, and not with the administrator or representative of the estate. The funds in his hands come from the decedent; they do not originate with him. Therefore, his place of residence could not fix the village, city or toAvnship that would be entitled to the tax.

Therefore, it being my opinion that in case of realty the collateral inheritance tax originated in the city, village or tovroship in which it is situated, an order may be taken directing the auditor to issue his warrant to the treasurer to pay the proper authorities of New Jasper township, Greene county, Ohio, one-half of the collateral inheritance tax paid into the county treasury upon land situated in such township.  