« 이전계속 »
the law upon the court in probate to appoint party with instructions to deliver it to the more than one inheritance-tax appraiser as grantee named therein on the death of a probate appraiser, it does, however, be- the husband, notwithstanding that his death come the duty of the probate court, under occurred after the passage of the act.-Hunt section 16 of the inheritance-tax law, to V. Wicht, 53 Cal. Dec. 64, 162 Pac. 639. appoint such an appraiser, and in view of
Proceedings to collect tax.-The inthe provision of section 14 of such act that
heritance-tax statute as it existed in 1911 if the inheritance-tax appraiser shall have
(Stats. 1911, p. 713) did not impose a tax, failed to act as one of the probate appraisers,
generally, upon transfers made in contemthe expense of making the inheritance-tax
plation of death or intended to take effect appraisement shall be paid out of the estate
in enjoyment after death, but only upon and not out of the inheritance-tax fund
such transfers when made "without valunder the control of the county treasurer,
uable and adequate consideration," and the the executor or administrator, as a matter
absence of the consideration is just as esof economy, may well see that such inheri.
sential to the obligation to pay the tax as tance-tax appraiser acts in the matter of
is the contemplation of death, of the intenthe inventory and appraisement of the es
tion of the transferrer that possession or entate.-Estate of Haskins, 170 Cal. 267, 149
joyment shall be postponed until death; and Pac. 576.
the burden is on the officer seeking to re3. While the appraisers in probate report cover a tax under subdivision 3 of section 1 upon the character and probable value of all of said act to show that there was not a the properties of the estate, the duties of the valuable and adequate consideration for the inheritance-tax appraiser are essentially dif- transfer.-McDougald v. Boyd, 172 Cal. 753, ferent. He is to report upon the character 159 Pac. 168. and probable value of so much of the estate
8. In a proceeding to collect an inherias is liable for the inheritance-tax, and, still
tance-tax under the inheritance-tax statute further, he is to determine whether transfers
as it existed in 1911, the contention that of property have been made by the deceased
the appellant, if she wished to raise the of such nature as to render the property
question, should have demurred to
the transferred liable to the inheritance-tax.
petition for failure to allege a want of Estate of Haskins, 170 Cal. 267, 149 Pac. 576.
consideration, can not be sustained, as the Constitutionality - Double taxation.- demurrer would have been of no avail, The fact that the state in which the per- where the petition alleged that the property sonal property is distributed on ancillary sought to be taxed belonged to the deceased administration also imposes an inheritance- at the time of his death, for if this allegatax does not violate any principle of consti- tion had been true, the tax would have tutional law against double taxation.-Es- accrued under subdivision 3 of section 1; nor tate of Hodges, 170 Cal. 492, L. R. A. 1916 A is this objection removed by the contention 837, 150 Pac. 344.
that the case was tried upon the theory 5. Construction of act:--The inheritance
that there was no consideration, where it tax law of 1911 contemplates notice and a
does not appear that any reference was hearing of the report of the inheritance-tax
made to the matter of consideration during
the trial, or that there was any evidence appraiser, a determination by the court after
specifically directed to this point. The bursuch hearing, and an authorization to the
den of proof being on the plaintiff, defencounty treasurer to receive the tax when
dant was not bound to offer evidence, and such formal proceedings have been taken,
had a perfect right, after judgment, to insist and where the law is not followed and the
that the facts necessary to establish a liaamount of the tax not fixed by judicial de
bility on her had not been alleged or proven. cree, the court has no power after final
-McDougald v. Boyd, 172 Cal. 753, 159 Pac. distribution to amend its decree by a nunc
168. pro tunc order directing the payment of the
9. In an action brought under the protax, and the treasurer is justified in refusing
visions of subdivision "A" et seq. of section to accept the same.-Estate of Haskins, 170
29 of the inheritance-tax law to quiet title Cal. 267, 149 Pac. 576.
to real property against the state's claim 6. Conveyance by husband to wife prior
of lien of an inheritance-tax, wherein the to passage of act.-The act of April 7, 1911 defendant averred that the deed upon which (Stats. 1911, p. 713), providing for a tax on plaintiff's claim of title was founded had any transfer by deed "made without val- been made by the grantor in contemplation uable and adequate consideration in con- of death and to take the place of a testatemplation of the death of the grantor, . mentary disposition of realty, it is error to or intended to take effect in possession or
exclude evidence of the value of the property enjoyment at or after such death," when offered by the defendant, but such error is the party taking "becomes beneficially en- without injury to plaintiff, where it was titled in possession or expectancy to any shown by its own witnesses that the land property or the income therefrom, by any was of a greater value than five hundred such transfer, whether made before or after dollars, and, therefore, not exempt from the the passage of such act," is not applicable tax.-Abstract & Title Guaranty Co. v. State to a deed made by a husband to his wife of California, 173 Cal. 691, 161 Pac. 264. prior to the passage of such act, where such 10. Property subject to tax. — Personal deed was immediately delivered to a third property of a resident decedent in this state, quent state, road, and hospital tax by this
which at the time of his death is located outside of the state and which is never brought into this state for the purposes of administration, is subject to an inheritance tax under the application of the familiar maxim, mobilia sequuntur personam. — Estate of Hodges, 170 Cal. 492, L. R. A. 1916 A 837, 150 Pac. 344.
11. A gift of real property made by a husband to his wife two days before the performance upon him of a surgical operation, considered necessary to save his life, and a gift of real property made by him to her a few months thereafter upon the recurrence of the disease five months before his death, are transfers made in "contemplation of death" within the meaning of the inheritance-tax act of 1911, and therefore subject to such tax.-Estate of Reynolds, 169 Cal. 600, 147 Pac. 268.
12. A transfer of store property valued at one hundred thousand dollars and the merchandise contained in the store, made by. a father to his son a few months before his death and while suffering from a mortal disease, in consideration of an agreement by the son to assume an indebtedness of thirty thousand dollars and pay the father six hundred dollars per month during his life, does not measure up to the require
ments of the inheritance-tax act of a valuable and adequate consideration for the transfer, and is therefore subject to such tax.-Estate of Reynolds, 169 Cal. 600, 147 Pac. 268.
13. Valuation of property - As of what time determined.-In determining the valuation of the property of an estate which passed under a will to a residuary legatee, for the purpose of fixing the amount of the inheritance tax due under the InheritanceTax Act of 1905 (Stats. 1905, p. 341), the value of property which so passed to such legatee, but which by reason of its misappropriation by the executor was lost to the estate, is properly included.-Estate of Hite, 159 Cal. 392, 113 Pac. 1072.
14. The question whether property is subject to the tax is to be determined on the conditions existing at the time of death, and the tax is to be assessed on the value of the property at that time. Subsequent appreciation or depreciation is immaterial.Estate of Hite, 159 Cal. 392, 113 Pac. 1072.
15. The right of the state to the tax accrues at the moment of death, and is measured as to any beneficiary by the value at that time of such property as then actually passes to him.-Estate of Hite, 159 Cal. 392, 113 Pac. 1072.
83753. SETTLEMENT OF TAX-COLLECTOR WITH AUDITOR; WHEN MADE; FORM OF. On the first Monday in each month the tax-collector must settle with the auditor for all moneys collected for the state or county, and pay the same to the county treasurer, and on the same day must deliver to and file in the office of the auditor a statement under oath, showing:
1. An itemized account of all his transactions and receipts since his last settlement, which account must show the amount collected for each fund or district extended on the assessment book,
2. That all money collected by him as tax-collector has been so paid to the county treasurer.
History: Enacted March 12, 1872; amended May 11, 1917, Stats. and
Amdts. 1917, p. 431. In effect July 27, 1917. 1. Embezzlement before settlement. ber 3, and the proceeds became a part of the Where the defendant was charged with em- funds for which the defendant was to acbezzling certain money on November 1 and count at the end of the latter month, these the evidence showed that the money em- two offenses are but a part of the same bezzled was the proceeds of a check received criminal act.People v. Preciado, 31 Cal. on October 29 but not cashed until Novem- App. 519, 160 Pac. 1090.
$3757. WHEN TAXES BECOME DELINQUENT. SECOND INSTALMENT [repealed).
History: Original section enacted March 12, 1872, and repealed
Stats. and Amdts. 1917, p. 431. In effect July 27, 1917. $ 3764.
section, in order that all taxes constituting 1. Construction. The statement as to poll
liens on the property assessed may be coltax contained in the delinquent roll is not
lected or enforced against such property.an "assessment" of property, at all, but is
Hall v. Park Bank of Los Angeles, 165 Cal. simply a statement as to a tax and a penalty thereon to be enforced against the property
356, 132 Pac. 452. assessed. It is a matter required to be 2. Construed in connection with $3860. shown in the delinquent roll, with delin- See post, $ 3860.
8 3769a. LAND SOLD FOR TAXES ENCUMBERED BY TRUST DEED OR MORTGAGE [repealed).
History: Enactment approved March 20, 1905, Stats, and Amdts. 1905, p. 550; repealed May 11, 1917, Stats. and Amdts. 1917, p. 431. In effect July 27, 1917.
Park Bank of Los Angeles, 165 Cal. 356, 132
1. Construed in connection with $ 3860. See post, $ 3680.
2. Where land is assessed with improvements.—The right to collect an advertising charge exists solely by reason of the provisions of this section. There is no authorization for a separate fifty cent charge for improvements on land where the assessment is a single assessment of the land with the improvements thereon, with the respective values of the land and improvements stated in separate columns; the limit of the charge in such case is fifty cents for both land and improvements thereon.-Hall v.
1. Time in which redemption may be effected.—The owner's right of redemption remains until the state has disposed of the land under $ 3897.-Jordan v. Beale, 172 Cal. 226, 155 Pac. 990.
1. Construction. The provisions of this section are not so broad as those of section 29 of the "Street Opening Act of 1903" (Stats. 1903, p. 376).—Tilton v. Russek, 171 Cal. 731, 154 Pac. 860.
$ 3787. TAX-DEED, WHAT RECITALS IN ARE CONCLUSIVE EVI. DENCE. Such deed, duly acknowledged or proved, is (except as against actual fraud) conclusive evidence of the regularity of all other proceedings, from the assessment by the assessor, inclusive, up to the execution of the deed.
Such deed conveys to the state the absolute title to the property described therein, free of all encumbrances, except any lien of taxes levied for municipal or irrigation district purposes and except when the land is owned by the United States or this state; in which case it is the prima facie evidence of the right of possession, accrued as of the date of the deed to the state.
History: Enacted March 12, 1872; amended March 28, 1895, Stats. and Amdts. 1895, p. 329; June 10, 1913, Stats, and Amdts, 1913, p. 559;
May 5, 1917, Stats, and Amdts. 1917, p. 241. In effect July 27, 1917. 1. Only when the deed conforms to the noying to the intending purchaser or rerequirements of the law is it made evidence demptioner.—Curtin V. Kingsbury, 31 Cal. of regularity of the proceedings.-Bruschi v. App. 57, 159 Pac. 830. Cooper, 30 Cal. App. 682, 159 Pac. 728.
2. Repealed in part-This section is in
conflict with Act of 1915, S. B. 906, chap. 389, 8 3788.
and is thereby repealed by said act in so far 1. Construction.—The right given to the as it provided a different method for the purchaser whose land had been sold to the disposition of school land.-Curtin v. Kingsstate for delinquent taxes was not to redeem bury, 31 Cal. App. 57, 159 Pac. 830. (as was the right given under $ 3817), but
3. Restoration to former estate. Where was a right to become a purchaser in prefer
a sale had been made to the state of school ence to any other person if, when applica
lands for non-payment of taxes and a deed tion was made, there was no other conflict
issued to the state, all rights of defaulting ing application. His rights were no greater
purchasers in such lands are extinguished, than those of any other purchaser, except
and the only way by which they can be rethat he was a preferred purchaser for a
stored to their former rights is by complilimited period.--Curtin v. Kingsbury, 31 Cal.
ance with the law existing at the time of App. 57, 159 Pac. 830.
making application for such restoration.
Under such circumstances the state has the 8 3788a.
right to dictate the terms upon which they LANDS SOLD TO STATE.
may be repurchased by the original or new 1. Construction.
purchaser, or the conditions upon which the 2. Repealed in part.
owners or purchasers or their assigns may 3. Restoration to former estate.
be restored to their original state or title.1. Construction.—The method of enforc
Curtin v. Kingsbury, 31 Cal. App. 57, 159
Pac. 830. ing payment of interest as a condition to the repurchase or redemption of school lands under the amendment of 1909 was no more
8 3804. burdensome than to enforce payment by 1. Erroneously collected taxes Construcforeclosure, and is less expensive and an- tion.-This section, together with section 3819, does not provide for payments of money out of the state treasury, but only allows deductions to be made from collections of taxes that would otherwise be paid into the state treasury. The enactment of these sectiong can have no proper bearing upon the meaning and effect of the prohibitions in the constitution concerning payments from the state treasury.-Westinghouse Electric & Mfg. Co. v. Chambers, 169 Cal. 131, 145 Pac. 1025.
2. -Action to recover-Rejection of demand.--An action to recover illegally collected taxes may be brought under the provisions of section 3804 of the Political Code, where demand upon the board of supervisors therefor is seasonably made, and the board fails to take any action thereon for a period exceeding six months. Such an unreasonable delay amounts to a rejection of the demand.-Otis v. San Francisco, 170 Cal. 98, 148 Pac. 933.
8 3804b. PROPERTY ASSESSED BY TWO OR MORE COUNTIES. CANCELLATION OF DOUBLE ASSESSMENT. Where real property shall hereafter be assessed by the assessors of two or more counties for the same year the owner thereof may file an action in the superior court of one of said counties against the conflicting claimants and discharge the obligation by paying the largest amount of taxes assessed and levied on said land by any of said counties into court and compel said counties to interplead and litigate their several claims among themselves in accordance with section three hundred eighty-six of the Code of Civil Procedure. Where real property has heretofore been assessed by the assessors of two or more counties for the same year and the owner thereof has paid all of the taxes on one of such assessments, upon proof of the payment of such taxes on one of such assessments for any year, by the production of a tax receipt or certificate of the auditor of the county in which such payment has been made, the board of supervisors of any other county claiming the right to assess and tax such real property, shall thereupon enter an order upon its minutes directing the auditor to cancel such double assessment of such property by an entry on the margin of the assessment book, as also upon the delinquent list, should such double assessment be carried therein. if the property assessed under such double assessment has been sold to the state and a certificate of sale or deed therefor has been issued to the state, the order of the board shall further direct the recorder to cancel such erroneous certificate and deed so issued except where the state has disposed of the property thereby conveyed.
History: Enactment approved April 13, 1917, Stats. and Amdts. 1917, p. 118. In effect July 27, 1917.
-This section does not dispense with the requirement that the deed shall correctly recite the name of the person to whom the property was assessed, as a condition to its validity.-Bruschi v. Cooper, 30 Cal. App. 682, 159 Pac. 728.
1. Construction,-The method prescribed by this section in 1883 for the redemption of school lands sold for delinquent taxes applied only to purchasers who had paid "the full amount of one dollar and twentyfive cents per acre." Thus it remained until
1895, when it was made to apply to purchasers "when the full amount of the purchase price of one dollar and twenty-five cents per acre has not been paid, except where the deed to the state, provided for in section 3785, has been filed with the surveyor-general." By this act there were many changes made in the sections of the Political Code relating to the sale, redemption, and disposition of lands sold for delinquent taxes. School lands were made subject to the act and were referred to in sections 3785 and 3788 as well as in this section.-Curtin v. Kingsbury, 31 Cal. App. 57, 159 Pac. 830.
8 3818[a]. PARTIAL REDEMPTION. In all cases where a lot, piece, or parcel of land contained in any assessment has been sold or may hereafter be sold for delinquent taxes to the state, and the state has not disposed of the same, a partial redemption may be made, separately from the whole assessment, of any such lot, piece or parcel of land as follows:
If such lot, piece or parcel of land has a separate valuation on the assessment roll, such partial redemption shall be made in the manner following:
[Manner of partial redemption.] In the estimate provided for in the preceding section, the auditor shall estimate the amount of state and county taxes due on such lot, piece or parcel of land, together with a proper proportion of the taxes due on personal property under such assessment, and of the taxes due each school, road, lesser or other taxation district; and such redemption shall be made in the manner provided for in the preceding section.
If such lot, piece or parcel of land does not have a separate valuation on the assessment roll, the auditor shall investigate and ascertain the relative or proportionate value such lot, piece or parcel of real property bears to the whole tract assessed, and the auditor shall estimate the amount of such taxes due on such lot, piece or parcel of land according to such relative or proportionate value and the taxes due on any improvements on the portion sought to be so redeemed, together with a relative proportion of the taxes due on personal property under such assessment, and of the taxes due each school, road, lesser or other taxation district; whereupon such redemption shall be made in the manner provided for in the preceding section; provided, that no lot, piece or parcel of land owned or claimed under contract by the person so redeeming shall be divided for the purpose of such redemption.
A notice by registered mail of the proposed division must be given by the auditor to the person or persons to whom the same was assessed, if known to the auditor, if not so known, by posting a notice of such proposed division for a period of twenty days in three public places in said county, and if no protest against said division be filed with the auditor within twenty days from the date of the posting or mailing of such notice, the auditor shall thereupon issue an estimate as above stated. In cases where written protest is filed within said twenty days to said division, the auditor shall withhold his estimate and refer the matter to the board of supervisors for decision.
The board of supervisors shall set a time for hearing said protest, and cause a notice of the date of said hearing to be mailed by its clerk to the person or persons who have filed a written protest with the auditor, as above provided, at the post-office address named in such protest, at least five days prior to the date of such hearing, and at the termination of said hearing may confirm the act of the auditor or modify or set aside the same and its decision in the premises shall be final. In the event of such reference to the board of supervisors and of their dividing the assessment, the estimate of the auditor shall conform to the action of the board. A partial redemption may be made, in like manner, separately from the whole assessment, of an undivided interest in any real property, if such property has a separate valuation on the assessment roll; the auditor estimating the amount of taxes due on such undivided interest according to the proportion which such interest in said real property bears to the whole assessment. The recorder shall note, on the margin of the record of the certificate of sale a description of the property or undivided interest redeemed under this section, and shall specifically set forth the several amounts of taxes paid upon such redemption.
History: Enactment approved April 1, 1897, Stats, and Amdts. 1897, p. 434; amended June 1, 1917, Stats. and Amdts. 1917, p. 1633. In effect July 31, 1917.
Note: See Editorial Notes in Kerr's Cyc. Pol. Code, $$ 3818 and
3818[a]. & 3819. As to construction of, see ante, $ 3804.