Kansas Mutual Life Ass'n v. Hill

The opinion of the court was delivered by [644] rors-injunc- [643] The plaintiff seeks to enjoin the collection of certain taxes assessed against it, claiming that the assessment was made without authority of law by the township assessor, and that the property on which the assessment is based is not taxable. On the first proposition, it is insisted that the secretary of the company having, on the 11th of March, 1889, [644] sworn to a statement of the property of the company which it was bound to list for taxation, the assessor had no power or authority to return another, different list, as he did on the 30th day of April of that year, and include therein other property of the corporation. It may be conceded for the purposes of this ease that the proceedings of the assessor were irregular and unauthorized, but this is an equitable action, and must be governed by equitable rules. The fact that the plaintiff’s authorized agent made a return of the property of the corporation subject to taxation cannot avail the plaintiff in this action, unless it was a true return; otherwise the plaintiff would be obtaining an advantage from its own wrongdoing. It is well settled in this state that injunction cannot be maintained to restrain the collection of taxes, which the plaintiff justly ought to pay, because of errors or irregularities m the proceedings ot the taxing officers. (K. P. Rly. Co. v. Russell, 8 Kas. 558; Parker v. Challiss, 9 id. 155; Smith v. Comm’rs of Leavenworth Co., 9 id. 296; Adams v. Beman, 10 id. 37; Ryan v. Comm’rs of Leavenworth Co., 30 id. 185.) The case of Gibbins v. Adamson, 44 Kas. 203, and Coal Co. v. Emlen, 44 id. 117, relied on by counsel for plaintiff in error, are not in point. In neither of those cases did it affirmatively appear that the plaintiff had failed to include all his taxable property in his statement. In this case it affirmatively appears by the testimony of plaintiff’s secretary that the principal part of the company’s property was omitted from the statement sworn to by the secretary and delivered to the assessor. If this property was taxable under the law, it should have been returned as such to the assessor, and the court will not by injunction aid the plaintiff in escaping its due share of the public burdens. Allen, J.: [644] We will now consider the main question in the case, namely, whether this property is taxable or not. It is urged on behalf of the plaintiff, 111 at the company was liable to the holders of policies for the full amount of all its assets, and that it had the right to deduct the sum of its liabilities from its credits; also, that all funds held by the company were [645] properly held for a reserve; that they were held in trust for the policy holders, and were not the property of the company; that this applies both to the securities deposited with the state treasurer, and to the funds in- bank and otherwise held by the company. It is claimed that $72,754.77 of the funds of the company were held to apply on what are termed “natural-premium policies”; that the present worth of such policies, computed in accordance with ¶ 3401 of the General Statutes, was; more than this sum, and the whole therefore exempt from taxation. Paragraph 3363 is also cited, as requiring the company to deposit with the state treasurer the net value of all policies, valued as prescribed in the insurance act. Paragraph 3401 of the General Statutes is § 77 of chapter 93 of the Laws of 1871, as amended by §1, chapter 91, Laws of 1873, and reads as follows: “In case any life insurance company organized under the the laws of this state shall have issued or shall hereafter issue any policies of insurance upon the life of any individual, or upon the life of any person expressed to be for the benefit of any woman, whether married or unmarried, or for the benefit of minor children, or for the benefit of any invalid, aged or infirm person, whether the same be effected by themselves, for themselves, or by any other person or persons in their behalf; all such policies and their reserves, or the present value thereof, shall be payable according to the terms thereof, and shall inure to the sole and separate use and benefit of the beneficiary named therein, and shall be free from the claims of the husband, or any creditor or representative of the husband, and shall also be free from the claims of the person or persons effecting such insurance, their creditors and representatives, and. shall also be free from all taxes, and the claims or judgment of the creditors and representatives of the person or persons whose life or lives are so insured; but such policy of insurance, reserve or present value thereof thus exempt shall not exceed in amount a sum that may be purchased at the age of 30 years on the continuous-payment life rate American mortality, interest 4J per cent, net premium, .$500 and no more.” [646] 2' comi5any~re- [645] Section 78, ch. 93, Laws of 1871, reads: “The provisions [646] of this act shall not apply to life insurance companies organized on the cooperative plan.” The plaintiff’s claim of exemption from taxation under the provisions of this section fails for two reasons, either one of which is sufficient: First, it is not shown in the testimony or findings of the court how many of the policies outstanding are for the benefit of any woman, minor children, invalid, aged or infirm person, nor is the present value of any policy shown computed in accordance with the rules prescribed by this section. The secretary of the company testified with reference to the meaning of this section, but, from his testimony, it appears that he fails to comprehend the extent of the exemption. In the absence of a showing that the outstanding policies fall within the terms of the statutory exemption, the funds must be held taxable. But § 78, above quoted, by its express terms prevents the application of § 77 to the funds of such companies as the plaintiff, which is properly a mutual association, organized on what is termed in §78 the cooperative plan. At first the plan of the company was to collect from its policy holders by assessments to meet losses as they occurred. Afterward the plan was changed, by requiring advanced payments at intervals of such sums as it was estimated under the experience tables would be sufficient to meet the losses as they might occur. The secretary testified that the amount shown to be necessary by the American tables was “loaded” 25 per cent., thus affording a surplus; that of this 20 per cent, was set aside for the reserve fund, and 80 per cent, held for .what he terms the “mortuary fund,” to pay current losses. No question is now presented as to the right of a mutual company having no capital stock to collect premiums in this manner. The secretary’s testimony is to the effect that these policies were only binding from one payment to another until after 15 years, and that in case within that time the policy holder failed to make his payment he lost all claim on the reserves of the company. [647] But it is contended that ¶ 3459 of the General Statutes makes this a sacred fund, which cannot be reached by taxation. That paragraph reads as follows: “ There shall be set aside and deposited with the treasurer of this state, as provided by § 11 of this act, by every mutual life insurance association doing business in this state under the provisions of this act, as a guaranty fund, not less than 10 per cent, from each assessment made for the payment of death claims. The said reserve shall be deposited and held as hereinafter provided, and shall be kept sacred, and be paid out only in the manner and for the purposes herein named. The net interest accruing upon such reserve shall be placed to the credit of the mortuary fund, and become a part thereof. When the death rate of said association shall be in excess of the American experience mortality table, or a semiannual ratio thereof, then and in that event the association may draw on such reserve fund to pay such excess. When such reserve shall have accumulated in excess of one per centum of the insurance in force in such association, such excess may, by the order of the board of directors or trustee thereof, be distributed by the treasurer of state to the members of said association for the payment of assessments.” This section applies, we think, as well to the fund claimed to belong to the natural-premium policies as to the assessment policies; and, while counsel has taken much care to separate them, we shall treat the whole as one fund. The trial court seems to have made a distinction between the amount deposited with the state treasurer, and that in bank and in possession of the company; but the finding on that point is to the effect that all of these funds were accumulated by setting apart 20 per cent, of each assessment. Just why $30,430 was in the state treasury, and the balance thereof kept out, does not clearly appear. If it was in fact part of a reserve, set apart in accordance with the statute, ¶ 3461 of the General Statutes requires that it be deposited with the state treasurer. Does the provision of the statute requiring this fund to be kept sacred by necessary implication exempt it from taxation? The law requires that a guaranty fund of at least 10 per cent, on assessments be so deposited, and imposes the [648] duty on the company of keeping this fund sacred, unless the rate of mortality shall exceed the American experience tables, in which event it can be used for the payment of losses. The company, however, is permitted to have the benefit of all income derived from the securities deposited. Interest accumulates on these securities to precisely the same extent after they are deposited with the state treasurer, that it does before, and the company receives the full benefit thereof without any added burden. No reason is apparent why notes and mortgages should be subject to taxation while kept in the company’s safe, and exempted therefrom the minute they are placed in the state treasurer’s vault. While it is a duty imposed by the statute on the company to keep this fund sacred, it does not follow that a special favor, by way of exemption from taxation, was intended to be thereby conferred on the company. The sum required to pay taxes need not necessarily be drawn from the deposited securities. It may be taken from any other moneys belonging to the company; and whenever the affairs of the company are in such condition that it cannot maintain its reserve intact, and meet its obligations, the question will arise as to whether the company can be permitted to continue its business — a matter not now considered. We cannot hold that the section under consideration contains an implied exemption from taxation of any part of the fund. These are the only provisions of the insurance law relied on. But it is still contended that the liabilities of the company under its outstanding policies are debts owing in good faith, which may be taken from the credits it holds. No doubt the $10,000 due on the 1st of March for death claims then payable was such a debt; but are the contingent liabilities created by the outstanding policies such debts as the plaintiff' may deduct, if we concede that the securities held by it are of such kind that it would be entitled to deduct its indebtedness therefrom? [650] 3. contingent dlbtediieas — " deduction. ' n£rto lie” ’ [648] Our “attention has been called to Insurance Co. v. Lott, 54 Ala. 499, which seems to support plaintiff’s contention. The case of Equitable Life Ins. Co. v. Board of Equalization, 37 N. [649] W. Rep. Iowa, 141, relied on by plaintiff, differs from this case. The statute of Iowa allows a taxpayer to deduct his indebtedness from the amount of money or credits which he is required to list, and in that respect is quite unlike our own, which only allows such deduction to be made from credits not secured by liens on real estate, nor due from a bank on demand. The plaintiff in that case was a stock company to which its stockholders had contributed on their shares $100,000. The court regarded the shares as taxable at their cash value in the hands of the stockholders, and that this cash value would be aug-. mented by whatever accumulations of profit the company held, to which they would be entitled in case of distribution. In the plaintiff company there are no stockholders. The policies issued by the plaintiff in that case were not forfeited by failure to pay premiums after two payments, but a paid-up policy was issued for an amount fixed by the terms of the policy. The court held the reserves on such policies debts owing by the company. In this case, no such policies are outstanding. On the other hand, there are many authorities which hold that the contingent liabilities of insurance companies, both life and other, on policies outstanding before loss occurs, are not debts, within the meaning of the statute, which may be deducted from the credits of the company. (1 Desty, Tax., § 79; Insurance Co. v. Cappellar, 38 Ohio St. 560; Kenton Ins. Co. v. City of Covington, 5 S. W. Rep. 461; People v. Davenport, 91 N. Y. 574; People, ex rel., v. Commissioners, 76 id. 64; Fire Ins. Co. v. Parker, 35 N. J. L. 575; Sun Mut. Ins. Co. v. Mayor etc. of New York, 8 N. Y. 241.) The general rule is, that all property must bear its share of taxation, unless expressly exempted therefrom. There are no stockholders in this company to be taxed on their stock. No policy holder has a fixed right to any definite portion of the funds of the company. The ownership of all its assets of every kind is in the company alone. It is true that it has contingent liabilities, and is, in a sense, a trustee of the funds in its possession, but the beneficiaries of the trust are not yet determined except as to the $10,000 of losses already ac [650] crued. Each and any of the policy holders may forfeit their rights in the fund by failure to pay their assessments, and many of them probably will. A contingent liability which *s not susceptible of computation is not a debt owing in good faith which may be deducted from credits under the tax law, and we fail to find anything in the statutes indicating that it was the intention of the legislature that the reserve fund of an insurance company should be exempted. It appears, also, that the plaintiff owns property largely exceeding the amount held taxable by the district court, which it could not in any event free from taxation by deducting its indebtedness from the value thereof. The cash on hand and deposited in bank, as an ordinary deposit, payable on demand, is $25,294.21, and the mortgage loans amounted to $47,697. Under the rules prescribed in paragraphs 6847 and 6851 of the General Statutes, the plaintiff could not deduct its indebtedness from these items. (Lappin v. Comm’rs of Nemaha Co, 6 Kas. 403; Brown v. Thomas, 37 id. 282.) We find no error in the rulings of the trial court, and the judgment will be affirmed. All the Justices concurring.