
    (47 South. 442.)
    No. 16,827.
    UNITED STATES FIDELITY & GUARANTY CO. v. BOARD OF ASSESSORS et al.
    (June 22, 1908.
    Rehearing Denied Oct. 7, 1908.)
    1. Taxation (§ 462*) — Duty to Make Return — Failure in Good Faith.
    A taxpayer is not subject to the doom of the assessor, when the failure to make a return has been in good faith and on reasonable grounds.
    [Ed. Note. — For other cases, see Taxation, Dec. Dig. § 462.*]
    2. Taxation (§ 500*) — Cancellation oe Assessment.
    Where the taxpayer has been assessed for money in possession, when as a matter of fact he had no such money, and so stated in his return, the assessment will be canceled.
    [Ed. Note. — For other cases, see Taxation, Dec. Dig. § 500.*]
    Breaux, C. J., dissenting, and Monroe, J., dissenting in part.
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Orleans: Thomas C. W. Ellis, Judge. ■
    Action by the United States Fidelity & Guaranty Company against the board of as sessors and others to have its assessment canceled, or, in the alternative, that it be reduced. Judgment for the board, and the company appeals.
    Judgment set aside, and assessment reduced.
    J. Zach Spearing, for appellant. George Hitchings Terriberry, for appellee board of assessors. Francis Charles Zacharie (Harry Prentiss Sneed, of counsel), for appellee state tax collector. Henry Garland Dupré, Asst. City Atty., for appellee city of New Orleans.
   PROYOSTY, J.

Plaintiff is a Maryland corporation, domiciled in Baltimore, Md. It carries on business in this state through a local agent. Its business consists in furnishing fidelity, judicial, official, and other kinds of bonds. For the year 1906 it was assessed as follows:

Money loaned at interest, all credits,

etc. $10,000

Money in possession, etc. 1,000

It asks that said assessment. be canceled, for the reason, as to the first item, that whatever credits may arise in the course of its business in this state are not situated here, and therefore are not taxable here, and, as to the second item, that it has no money in possession, etc., in this state. In the alternative, it asks that the amount of the assessment be reduced.

Against the demand for reduction the defendant has pleaded the estoppel created by section 25 of the revenue law (Act No. 170, p. 360, of 1898) against the taxpayer who' “from any cause whatever” has failed or refused to make a return of his property to' the assessor.

The crucial facts, in connection with the item of credits, are the same as in the case of National Fire Insurance Co. v. Board of Assessors (recently decided) 46 South. 117,i where such credits were held to be taxable", that is to say, plaintiff does business in this state, and the credits arise in the course of, and are part and parcel of, that business. Plaintiff extends no credit to its customers. The business with them is supposed to be cash; but the agent is allowed 30 days in which to remit, and thus the plaintiff is constantly his creditor for the premiums collected, or supposedly collected, in the past month. The agent, in turn, extends a 30-day, and sometimes a much longer, credit to the customer.

As to the second item, the evidence shows that plaintiff has no money in possession in this state and that the return which it made in that regard was true.

On the question of reduction, plaintiff, in the return of its property which it was required by law to make to the assessor, stated that it had no credits in this state. In the decision this day handed down in the case of Travelers’ Ins. Go. v. Board of Assessors, 47 South. 439,2 such a return is

1121 La. 107. 2 Ante, p. 129. held to have been no return, but that the estoppel of the statute would not apply to a case where the not making of the return had been in good faith, for the reason that theretofore under the decisions of this court such credits had been considered not to be taxable. The circumstances are the same in the instant case, and we make the same decision, and therefore the assessment will have to he reduced according to the proof. We find that the average amount of plain-, tiff’s said credits was $1,014.53.

The learned judge a quo reluctantly enforced the estoppel, which up to the decision of the Supreme Court of the United States in the case of Central of Georgia Ry. v. Wright, 207 U. S. 127, 28 Sup. Ct. 47, 52 L. Ed. 134, rendered after his decision in this case, had been supposed to be unbending, and his decision will have to be amended in that respect, and for convenience in framing our own decree we will set it aside.

The judgment appealed from is set aside, and the assessment of the plaintiff is reduced to $1.014.53. Defendant to pay all costs.

BREAUX, C. J. I dissent.

MONROE, J.

I dissent in so far as plaintiff is held liable for taxation on money loaned, etc., and otherwise concur,  