#### Montreal Mining Company, Appellant, vs. The State, Respondent.

*November 21*

December *9, 1913.*

*Taxation: Income tax: Corporations: “Searing and appeal’’ as to-decision of tax commission: Statute construed: Illegal taxes: Remedies.*

1. Sec. 1087m — 13, Stats, (providing that any corporation feeling, aggrieved by the decision of the state tax commission regarding the assessment of its income “shall he granted the same rights of hearing and appeal as are now granted corporations. *246assessed by said commission”), does not refer to an action to recover taxes illegally levied, but to a review before tbe tax commission of its preliminary decision as to tbe amount of income upon wbicb tbe corporation must pay an income tax; being in effect tbe same right as tbe right “to appear and be beard” given to certain corporations, in respect to the assessment of their properties, by secs. 1215 — 10, 1218 — 11, 1222— 11, 122266, 1222 — 53, 1222 — 63, 1222 — 73, Stats.

2. Tbe time of the bearing under said sec. 1087m — 13, Stats., is a matter of detail for which tbe commission may provide.

3. *It seems*that the remedies as to the cancellation of illegal taxes and the refund of moneys paid thereon which, by ch. 27, Laws of 1913 (sub. 4, sec. 1087m — 22, Stats. 1913), are preserved to all persons paying income taxes, include the remedies given by sec. 1164, Stats. (Laws of 1913, ch. 478), by way of the filing of a claim and the commencement of an action against the town, city, or village to which the illegal taxes are paid.

Appeal from an order ,of tbe circuit court for Dane county: E. Rat SteveNS, Circuit Judge.

*Affirmed.*

For tbe appellant there was a brief by *Lines, Spooner, Ellis <& Quarles,*attorneys, and *Gfoulder, Day, White, Oarry & Duncan,*of counsel, and oral argument by *George Lines*and *Louis Quarles.*

For tbe respondent there was a brief by tbe *Attorney General,*and oral argument by *Walter Drew,*deputy attorney general. *,*

WiNsnow, O. J.

Tbe plaintiff, a Wisconsin corporation, brings this action against tbe state in the circuit court for Dane county to recover an income tax levied against it for tbe year 1912, which is claimed to have been unlawfully levied. A general demurrer to tbe complaint was sustained, and tbe plaintiff appeals, Tbe plaintiff’s claim is that tbe action is authorized by sec. 1087m — 13, Stats. 1911 (being one of tbe sections of tbe Income Tax Law), wbicb provides as follows:

> “Any corporation, joint stock company or association subject to assessment' by tbe state tax commission, feeling aggrieved by tbe decision of said commission regarding the *247assessment of its income, shall be granted the same rights .of Rearing and appeal as are now granted corporations assessed by said commission.” •

Unless this section authorizes the present action it is conceded that it cannot' be maintained.

The section is not accurately worded, nor as clear in its .meaning,as might be wished, but we are well satisfied that it does not refer to an action to recover taxes illegally levied,, but rather to a review before the tax commission of its preliminary decision as to the amount of income upon which the corporation must pay an income tax.

The three sections which immediately precede it' provide for the determination and assessment of all incomes on or after January 1st in each year, and for the manner of making returns both by individuals and corporations, as well as for the penalties for fraudulent or incorrect returns. By sec. 1087m — 10 it is provided that the assessment of corporations and joint-stock companies shall be made by the state tax commission and the assessment of persons by the county assessors. By sec. 1087TM — 11 it is provided that if it appears from evidence before the tax commission that any corporation has made incorrect or incomplete returns during the preceding three years, the tax commission may require of the corporation additional information and may make additions to the assessment for the current year to correct such previous errors, and shall give notice in writing of such increase to the corporation. Sec. 1087m — 12 makes similar provisions with regard to-the incomes of persons. Then follows sec. 1087m — 13, already quoted. The six sections immediately following contain full and precise provisions regulating the appointment of a county board of review, before whom all complaints as to the assessment of personal incomes by county assessors can be made, and provide for an appeal from the decisions of that board of review 'to the state tax commission.

*248The position of the section in controversy is very persuasive as to its intent. It is placed exactly in the position where a provision for review of the assessment would naturally be placed. Unless it be construed to mean such a review, then no review of an assessment once made by the commission is provided for, although the legislature has been industriously careful to provide for two reviews of the assessment of personal incomes, and notwithstanding the further fact that as to certain increases made by the tax commission the commission is required to give notice to the corporation affected thereby that the increase has been made. This latter proceeding would seem to be entirely superfluous, if not absurd, if it were to be held that' the corporation has no right to be heard concerning the matter.

Turning to other sections of the statute for assistance in construing the section under consideration, we find that the following classes of corporations were assessed by the commission for purposes of taxation at' the time the Income Tax Law was passed, viz.: railroad, telegraph, sleeping-car, street railway, express, freight line, and equipment companies. Sec. 1212 to sec. *1222-*— 71, inclusive, Stats. 1911. As to railroad, telegraph, and street railway corporations, we find it provided that the tax commission shall meet on the second ■ Tuesday in November of each year, to review the assessment' of the property of such companies, and that any company assessed has the right to appear and “be heard” as to the value and assessment of its property and the tax to be levied thereon at that time. Secs. 1215— 10, 1218 — 11, and 1222 — 11, Stats. 1911. As to the other companies named, they are given a right “to appear and be heard” in respect' to the assessment to be made upon their properties at a meeting to be held on the third Wednesday of August in each year. Secs. 12226b, 1222 — 53, 1222— 63, 1222 — 73, Stats. 1911.

It is very plain to us that this is the right of “hearing *249and appeal” wbicb is granted to corporations assessed under tbe Income Tax Act. Tbe time of tbe bearing is not fixed by tbe act, but tbat is evidently a matter of detail wbicb is entirely within tbe power of tbe commission to provide for.

We arrive at tbis conclusion tbe more readily because of tbe fact' that by cb. 27 of tbe Laws of 1913 tbe legislature has expressly preserved t'o all persons paying income taxes tbe same remedies as to tbe cancellation of illegal taxes and tbe refund of moneys paid thereon as are given in tbe laws relating, to taxes upon personal property. We see no reason why tbe remedy given by sec. 1164, Stats., as amended by ch. 478, Laws of 1913, by way of the filing of a claim and the commencement of -an action against tbe town, city, or village to wbicb tbe illegal taxes are paid, is not included witbin the provisions of tbis law.

*By the Court.*— Order affirmed.