
    Adams, State Revenue Agent v. Peoples’ Bank of Biloxi et al.
    
    [66 South. 407.]
    Taxation. Banks. Assessment. Bes judicata.
    
    Section 4273, Code 1905, section 3764, Code 1892, and Laws .1890, page 6, provided a special plan for the taxation of banks, requiring the officers to deliver to- the assessor a sworn statement showing the number and amount of all shares of stock, when paid in, and the sum, of all undivided profits and surplus and accumulation of any sort constituting part of the bank’s assets, not including real estate, and that the value of such shares estimated at par and increased by the proportion of the par value of all shares of stock to a surplus or accumulation, shall be the basis of taxation of such shares to the owner, and, if the shares are of less value than par they shall be valued accordingly. Under this statute since an “assessment,” is the listing and valuation of property, and the roll is not conclusive against the public as to what property the taxpayer owns, but only as against the taxpayer that he is the owner or taxable for property shown on the roll, and as against the taxpayer and the public that the valuation of the enumerated property is as finally shown on the roll; where certain banks returned statements failing to state the number and amount of shares of stock, but stating the amount of capital, and the surplus and undivided profits, from which a large amount was deducted for “loans possibly uncollectible,” an assessment made on such statements, though including under a subhead, “personal property not otherwise mentioned,” was not res judicata, so as to prevent the state revenue agent from making an additional assessment on “Capital Stock, surplus, and undivided profits,” as omitted property.
    Appeal from the circuit court of Harrison county.
    Hon. W. H. Hardy, Judge.
    Proceeding by Wirt Adams, state revenue agent, for the assessment of the First National Bank of Gulfport and the Peoples Bank of Biloxi, on capital stock, surplus, and undivided profits alleged to have escaped taxation. From an order of the board of supervisors vacating the assessment, affirmed by the circuit court, the revenue agent appeals.
    The facts are fully stated in the opinion of the court.
    
      Mayes & Mayes, for appellant.
    
      Ford & White and Bowers <& Griffith, for appellee.
   Reed, J.,

delivered the opinion of the court.

In accordance with the statute (section 4740 of the Code of 1906), the revenue agent gave notice to the tax collector of Harrison county to assess the First National Bank of Gulfport and the People’s Bank of Biloxi, by way of additional assessments on the roll in his hands with certain property, to wit, “capital stock, surplus, undivided profits and any and all other property assessable to the banks” which had escaped taxation during each of the years from 1902 to 1907, inclusive, by reason of not having been assessed. Objections were made by the banks to such assessments. The board of supervisors, upon the hearing, ordered that the assessments for back taxes be denied, rejected and vacated, and stated in the orders that the property sought to be taxed had been assessed for taxes for the years mentioned. On the hearing upon appeal in the circuit court before the judge, jury being waived, the judgments of the board of supervisors were affirmed. From the judgments of the circuit court, this appeal was prosecuted by the revenue agent. The assessments of the two banks are considered together as one case.

It was agreed by counsel that the action of the board of supervisors, in canceling the assessments for the years 1902 and 1903 against.the People’s Bank of Biloxi, is correct and should be affirmed. The liability for taxes against that bank for the year 1904 was admitted, and at this hearing we deal only with the assessments against the bank for the years 1905, 1906, and 1907.

The First National Bank of Gulfport hacl not been organized in 1902, and the assessment for that year was omitted. In 1903 the First National Bank was assessed under the heading, “Amount of money, United States legal tender notes, and other notes and certificates of the United States payable on demand and circulating or intending to circulate as currency, and gold and silver or other coin on hand, or in deposit or loaned;” in 1904, “Capitol stock.and surplus;” in 1905, “Capital stock and undivided profits;” 1906 and 1907, “Personal property not otherwise enumerated.”

The People’s Bank was assessed in 1905, “Amount of bonds, certificates, script or other forms of indebtedness of the state, or any county, city, town, village’, board, or body capable of being a debtor, held by the person rendering the list and in whose behalf it is rendered;” in 1906, “Amount of indebtedness to the party assessed which he regards as probably collectible; ’ ’ and for 1907, “Amount or other personal property not otherwise mentioned.”

The statute (section 4273 of the Code of 1906; section 3764 of the Code of 1892; Laws of 1890, p. 6) provides a special plan for the assessment for taxation of banks. Therein it is required that the officers of .the banks shall deliver to the assessor of taxes of the county a written statement, under oath, of the number and amount of all its shares of capital stock, when paid in, “and of the sum of all undivided profits or surplus or accumulation ■of any sort constituting part of the assets of the bank and not including its real estate. ” “ The value of such shares ■estimated at par and increased by the proportion of the par value of all the shares of the stock to the said surplus fund or accumulation .- . . shall be the basis of the taxation of such shares ... to the owner thereof. ’ ’ If the shares of the bank are of less value than par, they shall be valued accordingly.

' For the purpose of illustration, we give below two of the statements delivered by officers of the banks to the ■county assessor, one for each bank, both for the year of 1907:

■“State of Mississippi, Harrison County.
“To the Tax Assessor of said State and County — Sir: I beg to deliver to you written statement of stock of the People’s Bank of Biloxi, Mississippi, to wit:
Amount of capital paid in ................$18,935 00
Surplus fund .........................'____ 40,000 00
Amount of undivided profits Feb. 1st.....•... 15,166 00
Total ................._................$74,101 59
Less percentage of loans possibly uncollectible, and to come out of surplus by deduction ... 48,586 65
$25,514’ 94
'Less real estate, already assessed and which, was bought out of capital................ 8,835 00
Total amount assessable ............... 16,679 94
“Sworn to and subscribed before me this 2d day of February, 1907.”
“Statement of Assessable Property of the First Nat. Bank, Gulfport, Miss., February 1, 1907.
Capital stock paid in Sur- $250,000 00 plus and undivided profits 76,500 00
Less: . - $326,500 00
Beal estate ............... 25,000 00
Allowance 10 per cent on bills receivable for insolvent credits ............ 106,000 00
Allowance 2 per cent for interest on outstanding ■certificates of deposit.... 4,650 00
Allowance 2 per cent for unearned interest on bills receivable .............. 21,200 00
Total amount of personal -
property, for assessable valuation .................................$156,850 >00
$168,650 00
“-, Vice President.
“State of Mississippi, Harrison County.
“Before me,, the undersigned, a notary public in and for said county, personally appeared W. A. King, vice president of the First National Bank, Gulfport, Miss., who being duly sworn, says that the foregoing statement is correct and true to the best of his knowledge and belief.
“Sworn to and subscribed before me this-day of -, 1907.
“-, Notary Public.”

All of the statements returned by the bank officers omitted to state the number and ^amount of shares of the capital stock paid in. They state the amount of capital stock paid in and of the surplus and undivided profits, and from this they deduct certain sums. In the case of the People’s Bank it will be noted, in the copy of the statement given above, that the “percentage of loans possibly uncollectible,” amounting to nearly two-thirds of the total of the capital stock and accumulation, was deducted. In the statement of the First National Bank a deduction was made of certain allowances on bills receivable, etc., which reduced the amount of the capital stock about fifty per cent.

At the hearing in the circuit court, cashiers of both banks testified. A. B. Austin, cashier of the People’s Bank, testified that there had been no impairment of the capital stock of the bank during the years in question; that it had been above par, alad that, there had been a surplus in the bank, which surplus had not been impaired, but had been increased; that none of it had been charged off on account of bad debts. H. A. Jackson cashier of the First National Bank, testified that the capital stock of that bank was not worth less than par during any of the years of the back assessments, and that the' surplus had increased.

The evidence shows that, during the whole period covered, the capital stock and surplus of the banks were worth dollar for dollar. The statements returned by the bank officers were for a much less amount than the value of the banks’ stock and accumulations. The amounts on the assessment-rolls were those given as balances after deductions in the statements. The shares of the bank appear therefrom to have been at less value than par, when it is shown by testimony that they were of equal or greater value. The banks, therefore, were not assessed with all of the property on which they should have paid taxes. According to the statements and the assessments in the case of the First National Bank, there was no surplus really assessed. The assessments were all less in amount than the actual capital stock paid in. In the Peopled Bank, deducting the real estate, the amounts were less than the capital stock; including the real estate as a part of the capital stock, a little more.

It was claimed in the objections filed by the bank, to the notice by the revenue agent, that the statements returned, and the assessments thereon, constituted a full showing by the banks of their assessable property, and that the approval by the board of supervisors of the rolls, with such assessments thereon, made them legal and sufficient assessments of the capital stock and accumulations, and rendered the matter res adjudicata against the state and county. In this appeal appellees contend.that this is so, even though such assessments were entered, not as items of capital stock and surplus, but under other subheads for property subject for taxation.

The scheme for the taxation of banks under the statute in this state is distinct from that for the taxation of other corporations or individuals. It.is the purpose of the statute to assess the banks on the amount of its capital, together with undivided profits, surplus, or accumulations of any sort. If the shares of the capital stock are less than par, they shall be properly valued.

The returns by the banks were not made in accordance with the statutory plan and requirement. The statements contained deductions of estimated amounts which, from the testimony, were wholly incorrect. The results or balances on the statements, which purported to show the value of capital stock and accumulations, were for very much smaller amounts than the proof showed to be correct.

In the instances where the assessments were not on the rolls as capital stock, surplus, or undivided profits, but under other subheads, the assessments were not sufficient ■ to show that the banks were assessed with their assets, as required by law. It is claimed that this error occurred because there was no place on the assessment roll furnished for the assessment of bank stock, etc. We notice, however, that for two years such assessments were entered by the assessor under the heading of capital stock and surplus.

In the case of Revenue Agent v. Clarke, 80 Miss. 134, 31 So. 216, it was held that:

“The rule of res adyudicata, in reference to assessment for taxation, rests upon the same basis as that of other judgment.”

The judgments in this case were the orders of the board of supervisors in approving the final assessment rolls. Such approvals determined what were the assessments made.

In Revenue Agent v. Clarke, supra, it was said that:

“One who relies upon the conclusive effect of a prior decision must be able to show that the precise point was decided in that proceeding.”

We quote from the opinion in that case as follows:

‘ ‘ The taxpayer is advised by law of the time and place when the question of valuation will be finally settled, and he must then and there attend or take notice of the final action of the board, and, if dissatisfied therewith, appeal to the next term of the,circuit court of the county. When no appeal is taken, the statute declares the'roll to be conclusive. Code, sec. 3787. The question is conclusive of what? It is not conclusive of the fact that the roll contains all the taxable property of the person named on the roll, although the list required to be. made by the taxpayer, and the roll made by the assessor, contains: a blank for nonenumerated personalty, under the head of Amount of all other personal property not otherwise' mentioned,’ for the Code expressly provided for the as-, sessment of any property that escapes assessment. Code, sec. 3768'. Since an assessment is the listing and valuation of property, and since the roll is not Conclusive ¿gainst the public as to what property the. taxpayer owns, it follows that the judgment of the board .can only, be conclusive of these two facts: First, as against the taxpayer, that he is the owner or taxable for the property shown on the roll; second, as against the taxpayer and the public, that the valuation of the enumerated property is as finally shown on the roll. ”

. The judgments in this case of the board of supervisors in approving the rolls adjudicated that the banks owned and were taxable for the property shown on the roll. They were conclusive that the banks were assessed for taxes on the particular property described under the subheadings of the roll. They were conclusive and former adjudications only of the assessments of capital stock, undivided profits, and surplus, when the roll- actually showed such assessments. They were not conclusive of the assessment of capital stock, etc., when the banks' assets were listed under such subheadings as “Amount of indebetedness probably collectible,” amounts of money, etc., and “Property not otherwise mentioned.”

The assessments against the First National Bank for the years 1904 and 1905 were properly made, and on the roll showed that the bank was to pay taxes on property it owned, and with which it was assessed under the scheme for taxing banks provided in the statute; that is, on its capital stock and accumulations.

It Is claimed that the assessments of the banks under the subhead of personal property not' otherwise mentioned is sufficient, because it included all personal property owned by the banks which had not been already listed. We cannot agree to this proposition. We repeats that there is provided by law a distinct and’Special plan for the taxation of banks. They are not taxed with the loans due them or bills receivable, but upon the value of their assets,'consisting of their capital stock, undivided profits, surplus, or accumulations of any sort. They are required to give the number and amount of the shares of their stock,., and to state the fact' if such shares are worth less, than par. The board could not say, from an assessment under the head of Personal property not otherwise mentioned,” whether the hank was paying on its capital stock, etc., as required by law, or whether the hank actually owned other property subject to taxation in addition to its capital. Such description is not definite. The property is not identified.

The hanks in this case are not in the position to say, from the approved assessment roll's, that their capital stock, undivided profits, and surplus have been assessed and taxed so that none has escaped taxation during the years in question, and none is at present subject to the collection of hack taxes thereon. The judgments of the board of supervisors finally approving the rolls, except in the years herein stated, do not show assessments of the property owned by the hanks, and sought to be assessed for back taxes, with such definiteness and sufficiency as to constitute a former adjudication and preclude the revenue agent from assessing it.

Reversed and remanded*

Smith, C. J.

(dissenting in part).

I am of the opinion that the assessments of the First National Bank for the years 1906 and 1907, and of the People’s Bank for the year 1907, are res adjudicata, and therefore cannot now he reopened. To that extent I dissent from the conclusion reached by my associates.  