Fidelity & Casualty Co. v. Coulter

Opinión op the court By JUDGE HOBSON Reversing. Appellants filed these suits to enjoin the board of valuation and assessment from proceeding to assess them for a tax on their franchises under section 4077, Ky. St. 1899. The court sustained a demurrer to their petitions, and they have appealed. The petitions are much the same. It is alleged in each that the plaintiff is a corporation authorized to carry on a general insurance business, other than life, fire, or marine insurance; that it has- conducted and now conducts a general insurance business other than fire, marine and life insurance; that it has complied with all the requirements of the statutes of the State, and has paid a tax of $2 upon each $100 of its gross premiums, but that the board is now about to assess it for several years for a franchise tax, although it is not a guaranty or security company, performs no public service, and neither has nor exercises any special or exclusive privilege or franchise not allowed by law to natural persons; that it owns no property within the State of Kentucky; and that unless restrained the board of valuation and assessment, without any reasonable foundation or authority in law, will fix a value upon its supposed franchise for the purpose of State taxation for a number of years. The allegations of the petition bring these cases within the rule laid down in the case of Aetna Life Ins. Co. v. Coulter, etc. (this day decided), 115 Ky., 787, 24 R., 193, 74 S. W., 1050, in which it is held that insurance companies are not embraced by the provisions of section 4077, Ky. St. 1899. It is earnestly argued in the briefs filed in this court for the appellees that these [809] companies are guaranty or security companies, or at least like companies, within the purview of this section; but there is not enough in the petition in any of the cases to raise the question, as the business the companies are doing in this State is not shown by anything in the record, except by the allegations of the petitions that they are doing an insurance business. The franchise tax for which the assessment is made under section 4077 does not depend upon the name of the company, or the name by which it may designate its business. If any of these companies are in fact doing a guaranty or security business in this State, as defined in the opinion above referred to, then they are embraced by the statute, and their franchise may be assessed under it. The company that is only doing a guaranty or security business is not an insurance company, within the meaning of the statute imposing a tax of $2 on each $100 of gross premiums; and if such a company has paid this tax, and is now assessed for a franchise tax,- it will be entitled to a credit on the lattpr tax for the amount which it has heretofore paid in the way of the tax .on gross premiums, if such is the fact. A company which is in name an insurance company, but is doing a guarantee or security business in this State, is a like corporation, within the meaning of section 4077, and is therefore embraced by it. If any of these companies has been doing both an insurance business and also a guaranty or security business, as defined in the opinion referred to, then it is liable for the tax of $2 on each $100 of gross premiums received in its insurance business, and is also liable for a tax on its franchise as a guaranty or security company, under section 4077. Judgment reversed and causes remanded, with directions to overrule the demurrers to the petitions, and for further proceedings consistent herewith.