APPEAL OF McLEAN TRUCKING COMPANY, WINSTON-SALEM

206 S.E.2d 172 (1974)

285 N.C. 552

Appeal of McLEAN TRUCKING COMPANY, WINSTON-SALEM, N. C., from an action of the Forsyth County Board of Commissioners placing the Taxable Situs of certain of Appellant's over-the-road vehicles in Winston Township (City of Winston-Salem), North Carolina, as of January 1, 1969.

No. 64.

Supreme Court of North Carolina.

July 1, 1974.

*176 W. F. Womble and Roddey M. Ligon, Jr., of Womble, Carlyle, Sandridge & Rice, Winston-Salem, for the City of Winston-Salem, appellant.

P. Eugene Price, Jr., Winston-Salem, for Forsyth County, appellant.

Claude M. Hamrick and George E. Doughton, Jr., of Hamrick, Doughton & Newton, Winston-Salem, for McLean Trucking Co., appellee.

HUSKINS, Justice:

The foregoing chronology of this litigation is gleaned from the docketed records in the four appeals which have now been carried through this Court. The Supreme Court will take judicial notice of its own records. Swain v. Creasman, 260 N.C. 163, 132 S.E.2d 304 (1963). Our decisions on the three previous appeals establish these propositions:

1. The tax situs of McLean's interstate equipment for the years 1969 and 1970 was Winston Township, the boundaries of which are coterminous with the corporate boundaries of the City of Winston-Salem. The property in question should have been listed therein for 1969 and 1970 taxes. In re Trucking Co., 281 N.C. 242, 188 S.E.2d 452 (1972); In re Trucking Co., 281 N.C. 375, 189 S.E.2d 194 (1972); In re Trucking Co., 283 N.C. 650, 197 S.E.2d 520 (1973).

2. Neither the Forsyth County Board of Commissioners nor the County Board of Equalization and Review had authority to change McLean's 1969 tax listing from Broadbay Township to Winston Township for two reasons: (1) The Board of Equalization and Review had finished its work and had adjourned prior to the City's attempt to make the listing; and (2) "as of the date of the attempted listing" the equipment could not be listed as "discovered property." We so held in In re Trucking Co., 281 N.C. 242, 188 S.E.2d 452 (1972). By reason of the Tax Supervisor's tardy attempt to change the listing of this property for 1969 at a time when the County Board of Equalization and Review was powerless to take such action, and our decision to that effect reported in 281 N.C. 242, 188 S.E.2d 452, the matter is res judicata as to the year 1969 and the property in question has permanently escaped taxation by the City for that year.

3. Our decision in In re Trucking Co., 281 N.C. 242, 188 S.E.2d 452 (1972), applies to taxation of the property in question for the year 1969 only. Its application was thus limited by our decision in In re Trucking Co., 283 N.C. 650, 197 S.E.2d 520 (1973). There, speaking through Justice Higgins, we held that the word "discovered" and the phrase "discovered property" are not synonymous, the former meaning "newly found, not previously known," while the latter means property which the tax authorities have ascertained should have been listed for tax purposes by the owner but which was not so listed, as a result of which the property has escaped taxation. That definition of "discovered property" was then applied to the facts in this controversy, and we specifically held that McLean's listing of its interstate equipment in Broadbay Township was insufficient to prevent application of the "discovered property" statute because (1) the listing in Broadbay Township was an invalid listing and (2) McLean was not authorized to list its tangible personal property anywhere except at the situs of its home office. The law thus written in In re Trucking Co., 283 N.C. 650, 197 S.E.2d 520 (1973), is authoritative with respect to the discovery, listing and taxation of the property *177 in question for the year 1970 and for any or all of the years 1965, 1966, 1967 and 1968 in which said property escaped taxation by the City.

4. The City of Winston-Salem was and is legally empowered to list said property in Winston Township for taxation for the year 1970 as "discovered property" and collect taxes thereon for the year 1970 and, except for the year 1969, for each of the five years prior to 1970 in which said property escaped taxation. In re Trucking Co., 283 N.C. 650, 197 S.E.2d 520 (1973); G.S. § 105-331(c), (e) as written prior to the 1971 revision. This means that the City of Winston-Salem may, after listing the property in Winston Township as discovered property, levy and collect taxes on same in any or all of the years 1965, 1966, 1967 and 1968 in which said property escaped taxation by the City.

5. The property in question must be appraised for purposes of taxation "at its true value in money" as of 1 January of each of the years 1965, 1966, 1967 and 1968. In re Trucking Co., 281 N.C. 375, 189 S.E.2d 194 (1972). If the parties cannot agree on its true value in money, resort may be had to the County Board of Equalization and Review and thereafter to the State Board of Assessment (now the Property Tax Commission) with judicial review by the courts as provided by law.

6. For the tax years 1965, 1966, 1967, 1968 and 1970 there was no statutory authority in this State for apportionment of the value of McLean's interstate equipment between or among the City and County where McLean's principal office is located and other taxing units in or out of this State. In re Trucking Co., 281 N.C. 375, 189 S.E.2d 194 (1972); Transfer Corp. v. County of Davidson, 276 N.C. 19, 170 S.E.2d 873 (1969); G.S. § 105-281 and G.S. § 105-302(a) as written prior to the 1971 revision. The burden is on the taxpayer who contends that some portion of his taxable personal property is not within the taxing jurisdiction of his domicile to prove that the same property has acquired a tax situs in another jurisdiction. Transfer Corp. v. County of Davidson, supra. There is nothing in the present record or in any of the three previous records involving this matter which tends to show that any portion of McLean's property had acquired a non-domiciliary tax situs for any of the years 1965 through 1970. Hence, arguments at this late date concerning apportionment only becloud the fundamental question of liability for home town taxes.

Applying the enumerated legal principles to the case now before us, we hold:

(1) The restraining order heretofore signed by Judge Wood was vacated by this Court (283 N.C. at 656, 197 S.E.2d 520) and the judgment entered in this case upon remand must decree accordingly.

(2) The only questions open for administrative or judicial review are (a) whether the property in question escaped taxation by the City for any or all of the years 1965, 1966, 1967 and 1968, and (b) if so, whether the property has been appraised for tax purposes at its true value in money as of January 1 each year.

All other matters concerning the right of the City to discover, list and tax the property in question for the named years have been litigated and decided. In re Trucking Co., 281 N.C. 375, 189 S.E.2d 194 (1972); In re trucking Co., 283 N.C. 650, 197 S.E.2d 520 (1973). To contend otherwise and say "there has been no determination in any forum with respect to McLean's rights to defend against the assessments for the years 1965 through 1968" is unrealistic and contrary to the facts and the law contained in the cited cases.

Public policy requires that there be an end to litigation. The decisions of this Court in this matter are res judicata and estop McLean from raising the same issues in the future. "The general rule is that judgment of a court of competent jurisdiction is final and binding upon parties *178 and privies. Ordinarily, to constitute a judgment an estoppel there must be an identity of parties as well as of the subject matter. In scope of operation with respect to the subject matter `it is not only final as to the matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided. . . . The court requires parties to bring forward the whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect to matters which might have been brought forward as part of the subject in controversy . . . The plea of res adjudicata applies, except in special cases, not only to the points upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject in litigation and which the parties, exercising reasonable diligence, might have brought forward at the time and determined respecting it.' Herman on Estoppel and Res Judicata, Sec. 122, p. 130, and sec. 123, p. 131." Gibbs v. Higgins, 215 N.C. 201, 1 S.E.2d 554 (1939). Accord, Walker v. Story, 256 N.C. 453, 124 S.E.2d 113 (1962); State v. Burell, 256 N.C. 288, 123 S.E.2d 795 (1962); Hayes v. Ricard, 251 N.C. 485, 112 S.E.2d 123 (1960).

The judgment appealed from is vacated and the proceeding is remanded to the Superior Court of Forsyth County for entry of judgment decreeing that:

1. The restraining order entered by Judge Wood on 25 January 1973 be vacated.

2. The City of Winston-Salem may proceed to list the property in question in Winston Township as discovered property and may levy and collect City taxes thereon for the year 1970 and for any of the years 1965, 1966, 1967 and 1968 in which the property escaped taxation by the City.

3. Costs shall be taxed against McLean Trucking Company.

Vacated and remanded.