Hardware Mutual Fire Insurance v. Stinson

Clarkson, J. As we answer the second exception and assignment of error in fay or of plaintiff, we see no reason to discuss the question involved in the first exception and assignment of error, as to whether, under the facts and circumstances of this case, the taxing authorities can go behind the returns. We may say, however, that the plaintiff’s tax returns for the year 1934 showed clearly a deduction for “unearned premiums” and the amount of same. This was approved by the Board of Equalization and Beview of Mecklenburg County. The amount plaintiff was due for tax was placed on the tax list and assessment roll for Mecklenburg County. In the findings of fact is the following: “The said tax list and assessment roll containing such assessment and valuation was approved and certified to by said Board of Equalization and Review as provided by law, and delivered to the treasurer-tax collector of Mecklenburg County, to whom said Hardware Mutual Eire Insurance Company on 30 October, 1934, paid the sum of $109.50, being a tax levied by the Board of County Commissioners of Mecklenburg County at the rate of 57 cents on the one hundred dollars on the said grand total of $19,210.” The plaintiff, like any other taxpayer, in good faith gave in its tax. The authorities, in clear written language and knowledge of the “unearned premiums” being deducted, and with this knowledge they accepted the “returns” and levied the tax and collected same. Plaintiff paid its tax as assessed, and later the additional tax on the “unearned premiums,” and, in conformity to the statute, paid this amount assessed under protest and sues to recover the amount back. The court below decided this aspect in plaintiff’s favor, and we see no error from the position we take on the second exception and assignment of error. On the second exception and assignment of error, we think the court erred in not giving judgment for plaintiff. The record discloses that a tax investigator concluded- that plaintiff’s return was not correct as to it deducting the “unearned premiums” as a liability from its solvent credits and bad the proper tax authorities to make assessment disallowing same. Plaintiff paid the tax for 1935 under protest, in conformity to the statute, and sues to recover the amount back. The court below held that the tax authorities could tax this “unearned premiums” — in this we think there was error. This is practically the only question involved on this appeal. Constitution of North Carolina, Art. Y, sec. 3, in part, is as follows: “Laws shall be passed taxing, by a uniform rule, all moneys, credits, *77 investments in -bonds, stocks, joint stock companies, or otherwise; and, also, all real and personal property, according to its true value in money,” etc. N. 0. Code, 1935 (Micbie), sec. 7971 (13): “Property subject to taxation — All property, real and personal, within jurisdiction of the State, not especially exempted, shall be subject to taxation.” See sections 7971 (18), (19), (36). Section 7971 (46), subsee. 25: “It is the purpose of this section to require, and it shall be the duty of each and every taxpayer to furnish, a complete and itemized list of the solvent credits, property, or things of value owned or possessed by him or in his control.” Section 7971 (50), subsecs. 1, 2, 3, and 4, provides for discovery of taxable property not listed, by certain tax authorities, and listing same. The Constitution and the above acts and the other acts on the subject are broad and comprehensive that all real and personal property shall be subject to taxation except that which is exempt by the Constitution. Section 7971 (47) provides: “All bona fide indebtedness owing by any taxpayer as principal debtor may be deducted by the list taker or assessor from the aggregate amount of the taxpayer’s credits, shown in items twenty and twenty-one of section 7971 (46).” Section 7971 (46), subsec. (21) — (what tax list shall contain) : “All solvent credits with accrued interest thereon, whether money on deposit, mortgages, bonds, notes, bills of exchange, certified checks, accounts receivable, or in whatever other form or credit and whether owing by any state or government, county, city, town, township, person, persons, company, firm, or corporation within or without the State.” The policy written by the plaintiff is the Standard Fire Insurance Policy required by the North Carolina statute (N. C. Code, 1935 [Michie], sec. 6437), in part, provides as follows: (Under Cancellation of Policy) “This policy shall be canceled at any time at the request of the insured, in which case the company .shall, upon demand and surrender of this policy, refund the excess of paid premium above the customary short rates for the expired time. This policy may be canceled at any time by the company by giving to the insured a five days’ written notice of cancellation with or without tender of the excess of paid premium above the pro rata premium for the expired time, which excess, if not tendered, shall be refunded on demand. Notice of cancellation shall state that said excess premium (if not tendered) will be refunded on demand.” Section 6294 provides, in regard to this unearned premium reserve, as follows: “Liabilities and reserve fund determined. To determine the liability of an insurance company, other than life and real estate title insurance, upon its contracts, and thence the amount such company *78 must bold as a reserve for reinsurance, the Insurance Commissioner shall take the actual unearned portion of the premium written in its policies. In case of the insolvency of any company, the reserve on outstanding policies may, with the consent of the Commissioner, be used for the reinsurance of its policies to the extent of their pro rata part thereof.” From a reasonable construction of the above statutes we think the unearned premiums a liability of the company. This statute in no way impinges on the Constitution. Unearned premiums, ipso facto, to some extent denote a liability. “Unearned premium — That portion which must be returned to insured on cancellation of policy. Ætna Ins. Co. v. Hyde, 315 Mo., 113, 285 S. W., 65, 71.” Black’s Law Dictionary (3d Ed.), p. 1404. The cases cited by the litigants are in woeful conflict, and we see no necessity to discuss them; but where statutes are in existence in the different states on the subject, as in this State, by the weight of authority the courts seem generally to hold that unearned premiums are a liability and can be deducted from solvent credits. We see no reason why the statutes in this State should be nullified. Plaintiff, within its legal rights recognized by statutory enactment, deducted its unearned premium as a liability from its solvent credits. The taxing authorities recognized this method, until the tax investigator decided otherwise, hence this controversy. It goes without saying that no tax should be imposed which is not just, on either corporation or individual. The ideal of government is equal justice, under law. Later, when the premiums are earned of returned, they will be taxed, and no escape from tax can take place by deducting unearned premiums from solvent credits. We have set forth the lengthy agreed statement of facts — the controversy without action — • in full, so as to show the bona fide contentions of the litigants. The able brief of counsel for defendants, citing eases in different jurisdictions, was persuasive but not convincing, as in this State we have statutes on the subject. On the first exception and assignment of error, made by defendants, we find no error. On the second exception and assignment of error, made by plaintiff, we find error. The judgment of the court below is affirmed on the first exception and assignment of error, made by defendants, and reversed on the second exception and assignment of error, made by plaintiff. Reversed on plaintiff’s appeal. Affirmed on defendants’ appeal.