
    (No. 625
    BEN CAPLAN, d/b/a NATIONAL TOWEL SUPPLY, Claimant. v. STATE TAX COMMISSIONER, Respondent.
    
      Opinion filed July 26, 1948
    
    Appearances:
    
      Rummel, Blagg & Stone (Donald 0. Blagg), for claimant.
    
      W. Bryan Spillers, Assistant Attorney General, for the state.
   CHARLES J. SCHUCK, Judge.

Claimant Ben Chaplan, doing business as the National Towel Supply, operates a linen and towel supply business in the city of Charleston, Kanawha county, West Virginia. Before and since 1942 claimant, has paid annually to the state tax commissioner under the business and occupation tax statute, certain specific amounts for each year, as reported on forms used for that purpose and supplied by the state to the taxpayer. In 1944 our Supreme Court, in Harper v. State Tax Commissioner, 126 W. Va. 707, held that the furnishing of linen and towels was not a service within the meaning of the statute, and that persons so engaged were not subject to taxation under the business and occupation tax statute of the state. It is admitted by the state that the tax payments made by claimant were exempt and not collectible but that a refund should only be allowed under the two-year statute of limitations as provided, and that such refund having already been made by the tax commissioner that claimant is not entitled to any further refund by the state or by the agency involved.

In the opinion of the majority of the court there is a moral obligation imposed upon the state to refund all taxes so improperly paid and illegally collected, not barred by the statute of limitations, to wit, five years, governing consideration of claims by this court.. A majority of the court so held in Davis v. State Tax Commissioner, decided April 21, 1948, and we reaffirm and readopt the opinion rendered in that claim as governing in the determination of the instant claim.

Claimant filed an itemized statement detailing the tax payments made for the years 1942 to 1944 inclusive and totaling $1,514.89, which statement was not contradicted by the state; however, the payment of $570.-62, made for the year 1942, is barred by the statute of limitations governing consideration of this claim and cannot be included in any award made herein.

Therefore, a majority of the court is of the opinion that a refund should be made to the claimant for the taxes paid for the years 1943 and 1944, and amounting to the sum of $944.27.

Accordingly, an award in the sum of nine hundred forty-four dollars and twenty-seven cents ($944.27) is made in favor of claimant and recommended to the Legislature for appropriation and payment.

ROBERT L. BLAND, Judge,

dissenting.

The majority opinion reaffirms the syllabus in Case No. 616, I. S. Davis, d/b/a Fairmont Linen & Supply Company, v. State Tax Commissioner. The syllabus in that case reads as follows:

“When the State Supreme Court rendered a decision exempting the furnishing of linens, towels and similar articles from the provision of the business and occupation tax, there is a moral obligation imposed upon the state to refund the amount not barred by the state court of claims statute of limitations.”

I fail to perceive how, when a claimant neglects and fails to file application with the state tax commissioner for a refund of taxes paid within two years from the date of such payment as provided by chapter 11, article 1, section 2a of the code providing an exclusive remedy for obtaining such refund, there should be a moral obligation of the state to make such refund.

In volume 51, American Jurisprudence, under the subject Taxation, Sec. 1167, I find the following well understood and recognized rule of law stated:

“On grounds of public policy, the law discourages suits for the purpose of recovering back taxes alleged to be illegally levied and collected. Taxes voluntarily paid without compulsion, although levied under the authority of an unconstitutional statute, cannot be refunded or recovered back without the aid of a statutory remedy.”

See Annotation 94 Am. St. Rep. 425; Stratton v. St. Louis Southwestern R. Co. 284 U. S. 530, 76 L. ed. 465, 52 S. Ct. 222; Brunson v. Crawford County Levee Dist. 107 Ark. 24, 153 S. W. 828, 44 L. R. A. (NS) 293, Ann. Cas. 1915A 493; Roberts v. Boise City, 23 Idaho 716, 132 P. 306, 45 L. R. A. (NS) 593; People ex rel Eitel v. Lindheimer, 371 Ill. 367, 21 N. E. (2d) 318, 124 A. L. R. 1472, appeal dismissed in People ex rel Eitel v. Toman, 308 U. S. 505, 84, L. ed. 432, 60 S. Ct. 111, rehearing denied in 308 U. S. 636, 84 L. ed. 529, 60 S. Ct. 137; Wilson v. Philadelphia School Dist. 328 Pa. 225, 195 A. 90, 113 A. L. R. 1401; Philadelphia & R. Coal & I. Co. v. School Dist. 304 Pa. 489, 156 A. 75, 76 A. L. R. 1007; Putnam v. Ford, 155 Va. 625, 155 S. E. 823, 71 A. L. R. 1217.

In further support of my dissent to the award made in this case by majority members of the court, I refer to my dissenting statement in Raleigh County Bank v. State Tax Commissioner, Eastern Coal Sales Company v. State Tax Commissioner and Pinnell & Pfost v. State Tax Commissioner.  