Bragg Investment Company v. Cumberland County

Annotate this Case

96 S.E.2d 341 (1957)

245 N.C. 492

BRAGG INVESTMENT COMPANY, Inc. v. CUMBERLAND COUNTY and R. E. Nimocks, Treasurer of Cumberland County.

No. 593.

Supreme Court of North Carolina.

February 1, 1957.

*343 Poyner, Geraghty & Hartsfield, Raleigh, Taylor, Allen & Warren, Goldsboro, and Hoyle & Hoyle, Greensboro, for plaintiff appellant.

James MacRae, Lester G. Carter, Jr., and Robert H. Dye, Fayetteville, for defendant appellees.

RODMAN, Justice.

Congress waived the immunity from taxation which plaintiff might otherwise have claimed by the enactment of 10 U.S.C.A. § 1270d. Any doubt with respect to the application of that statute to the facts of this case has been removed by the decision in Offutt Housing Co. v. Sarpy County, 351 U.S. 253, 76 S. Ct. 814, 100 L. Ed. 1151. The decision in that case was rendered since this litigation began. Appellant concedes its applicability.

The only question left for decision is: Has the State authorized Cumberland County to impose the tax? Appellant contends that the answer should be in the negative because it is a mere tenant and our statutes do not authorize the taxing of a leasehold estate. The answer to the question must, of course, be found by an examination of our statutes.

"All property, real and personal, within the jurisdiction of the State, not especially exempted, shall be subject to taxation." G.S. § 105-281.

It is traditional with us that property privately owned, either by individuals or corporations, shall, except when devoted to a public purpose, bear its proportionate part of the tax imposed for public benefit. Piedmont Memorial Hospital v. Guilford County, 218 N.C. 673, 12 S.E.2d 265; Sir Walter Lodge, No. 411, I. O. Oddfellows v. Swain, 217 N.C. 632, 9 S.E.2d 365; Latta v. Jenkins, 200 N.C. 255, 156 S.E. 857; Southern Assembly v. Palmer, 166 N.C. 75, 82 S.E. 18.

Exemptions from taxation are not presumed and statutes providing exemption are strictly construed. Henderson v. Gill, 229 N.C. 313, 49 S.E.2d 754; Harrison v. Guilford County, 218 N.C. 718, 12 S.E.2d 269; Rich v. Doughton, 192 N.C. 604, 135 S.E. 527.

Private owners of property are required to make and file a list showing the property they own. When listing real property, the improvements thereon must be shown, and if these improvements or other separate rights are owned by someone other than the owner of the fee, that fact, with a description of the improvements or rights so owned, must be shown. G.S. § 105-306 (6). This provision requiring the owner of the land to disclose the owner of the improvements is followed by a provision requiring the owner of the improvements to list the same unless with statutory permission they are listed by the owner of the land. G.S. § 105-306(7). Following these provisions is an enumeration of various properties required to be listed and then an all-embracing clause: "The value and a description of all other property, whatever, not specifically exempted by law." G.S. § 105-306(24).

Real property required to be listed includes buildings, and permanent fixtures. G.S. § 105-272(30). Personal property required to be listed is defined as "all personal property whatsoever, tangible or intangible, except personal property expressly exempted by law." G.S. § 105-279(1).

G.S. § 105-301(8) provides the statutory permission referred to in G.S. § 105-306(7) for listing the fee ownership and improvements as a unit when the separate owners *344 so contract. If they do not so agree, then each must list his own property. That is the express provision of the statute.

Statutory provision is made for the listing of property for taxation when it passes after 1 January (the date for listing) prior to 1 July (the beginning of the tax year) from the hands of a nontaxable owner to an owner who is not tax exempt. G.S. § 105-280.

It is, we think, clear from our statutes that the property is subject to tax. The stoves and refrigerators are tangible personal property and as such subject to taxation. The structures and improvements are subject to taxation as real property. This leaves for consideration the leasehold rights valued for tax purposes at $1,196. A lease is, as appellant asserts, a chattel real, Moche v. Leno, 227 N.C. 159, 41 S.E.2d 369, and as such a species of intangible personal property. But that does not mean that it can escape taxation. It is, we think, subject to ad valorem tax and not to the State intangible tax. We do not understand that the right to so classify it is questioned.

The conclusions which we reach with respect to the validity of the tax based on our statutes conforms with the general pattern of taxation in other States. Conley Housing Corp. v. Coleman, 211 Ga. 835, 89 S.E.2d 482; Meade Heights, Inc., v. State Tax Commission, 202 Md. 20, 95 A.2d 280; Fort Dix Apartments Corp. v. Borough of Wrightstown, 3 Cir., 225 F.2d 473; Landlord & Tenant, 32 Am.Jur. 268.

By the express provisions of the lease quoted above plaintiff has obligated itself to pay the taxes assessed. The lease conforms with the provisions of G.S. §§ 105-306(7) and 105-301(8). The judgment appealed from is


JOHNSON, J., not sitting.