#### EDWIN GILL, Commissioner of Revenue of the STATE OF NORTH CAROLINA, v. F. D. SMITH, Alias GEORGE SMITH.

(Filed 13 December, 1950.)

Taxation § 38b—

Where tbe Commissioner of Revenue assesses additional income tax against a taxpayer in accordance with provisions of G.S. 105-160, and has the certificate filed in the county in which the taxpayer has property for the purpose of creating a lien, G.S. 105-242 (3), the taxpayer may not move in such county to vacate and set aside the certificate on the ground of irregularity or invalidity, no execution having been issued thereon nor any effort made to enforce the lien, but the taxpayer is remitted to the statutory remedies given him to contest the assessment or attack its validity. G.S. 105-163, G.S. 105-267.

Appeal by defendant from *Carr, J.,*May Term, 1950, of Guileokd.

Affirmed.

Motion by defendant to vacate and set aside certificate of tax liability filed by the Commissioner of Revenue and docketed in the Superior Court of Guilford County, on the ground that the certificate was void.

In support of his motion defendant alleged that upon receipt of notice of proposed assessment for additional income tax in the sum of $632,-162.23, he requested a hearing as provided in G.S. 105-160; that no *51bearing was bad nor was any notice given bim before tbe certificate of tax liability or assessment in tbe amount stated was filed and docketed on tbe judgment docket of Guilford County April 4, 1949; tbat defendant bad filed income tax returns and paid tbe tax for tbe years covered by tbe proposed assessment; tbat tbe assessment was made without authority and is void, irregular and a nullity; tbat tbe filing of tbe certificate of tax liability bas tbe force and effect of a judgment constituting a lien on bis property, enforceable by execution, and tbat tbis was accomplished without due process of law and in violation of bis rights under tbe Constitution of North Carolina and tbe Constitution of tbe United States.

Tbe present Commissioner of Eevenue Eugene Shaw moved tbat defendant’s motion be dismissed for tbat tbe statutes provide an adequate remedy for tbe matters complained of by defendant, and tbat tbe Superior Court of Guilford County bad no jurisdiction to vacate or set aside tbe certificate of tax liability.

Tbe court below dismissed tbe defendant’s motion, and defendant appealed.

*Attorney-General McMullan, Assistant Attorneys-General Tucker and Abbott, Hoyle.& Hoyle, Special Counsel, and G. C. Hampton, Jr., Special Counsel, for plaintiff, appellee.*

*A. Stacey Gifford and Welch Jordan for defendant, appellant.*

Deven, J.

Tbe Commissioner of Eevenue bas not answered tbe allegations of fact contained in defendant’s motion but bas taken tbe position tbat adequate remedy for tbe matters complained of is provided by pertinent statutes; and further tbat tbe jurisdiction to vacate and set aside a certificate of tax liability or assessment made by tbe Commissioner of Eevenue, in tbe performance of bis duty of enforcing tbe collection of taxes due tbe State, and filed by authority of the statute in any county or counties where defendant bas property, does not appertain to tbe Superior Court of Guilford County and tbat defendant’s motion constitutes a collateral attack thereon. He suggests tbat defendant’s motion is in effect an indirect attempt to restrain tbe collection of taxes which is prohibited by statute.

Section 105-160 of tbe General Statutes of North Carolina provides tbat if tbe Commissioner of Eevenue discovers tbat tbe income of any taxpayer bas not been assessed be may within three years give notice in writing to tbe taxpayer of such deficiency, and any taxpayer feeling aggrieved by such proposed assessment shall be entitled to a bearing before tbe Commissioner, if within thirty days be shall apply in writing, explaining bis objections thereto. If no request for such bearing is so made, tbe proposed assessment shall be final and conclusive. If request *52for bearing is made, tbe taxpayer shall be beard and notified of tbe Commissioner’s decision. Tbe limitation of three years to tbe assessment shall not apply to assessments upon fraudulent returns. Similar provisions are contained in G.S. 105-177 and in Chap. 392, Session Laws 1949, codified as G.S. 105-241.1. By G.S. 105-162 a taxpayer may apply to tbe Commissioner of Revenue for revision of taxes assessed against him at any time within three years from tbe date of notice of amount, and tbe Commissioner shall grant a bearing and determine tbe matter according to tbe law and tbe facts.

By G.S. 105-163, any taxpayer may file exceptions to a finding by tbe Commissioner with respect to bis taxable income either as to matter of fact or law, and tbe Commissioner shall pass upon tbe same and notify tbe taxpayer. Tbe taxpayer within ten days may appeal to tbe Superior Court of Wake County upon paying tbe tax assessed and giving bond for costs, or be may within that time appeal to tbe State Board of Assessment on exceptions to tbe finding of tbe Commissioner. Appeal may then be taken by either tbe taxpayer or tbe Commissioner to tbe Superior Court of Wake County. Tbe statute outlines tbe procedure in tbe Superior Court with right of appeal to tbe Supreme Court.

By G.S. 105-267 tbe taxpayer has tbe right to pay tbe tax assessed under protest and sue to recover it.

It does not appear from defendant’s affidavit in support of bis motion filed 5 April, 1950, that be has availed himself of any of tbe remedies prescribed by these statutes except that be alleges be notified tbe Commissioner in writing “requesting a bearing as provided in G.S. 105-160.”

Tbe principle is generally upheld by tbe courts that statutory remedies granted to a taxpayer must first be exhausted before applying to tbe courts. In *Association v. Strickland,*200 N.C. 630, 158 S.E. 110, it was said, “Tbe Courts everywhere are in accord with tbe proposition that if a valid statutory method of determining a disputed question has been established, such remedy so provided is exclusive, and must be first resorted to, and in tbe manner specified therein.” *Allen v. Hunnicutt,*230 N.C. 49, 52 S.E. 2d 18; *Worley v. Pipes,*229 N.C. 465 (472), 50 S.E. 2d 504; *Commissioner of Revenue v. Hinsdale,*207 N.C. 37, 175 S.E. 847. It is still open to tbe defendant to pursue bis remedy under and in accord with tbe provisions of applicable statutes.

Tbe defendant’s motion to set aside tbe certificate of tax liability which bad been transmitted to and docketed by tbe Clerk of tbe Superior Court of Guilford County, in accord with tbe provisions of G.S. 105-242 (3), was not properly cognizable by that court. Tbe statute empowering tbe Commissioner of Revenue to make an assessment against a delinquent taxpayer authorized him to transmit tbe certificate to any county in which tbe taxpayer has property. In accordance with this statute eertifi-*53cate that tbe defendant Smith was indebted to the State on account of duly assessed and delinquent taxes in the sum stated was transmitted under the hand and seal of the Commissioner of Eevenue to the Clerk of the Superior Court of Guilford County and there docketed. The certificate was regular on its face and could not be regarded as a nullity. The statute G.S. 105-241.1 declares it “shall be deemed correct.” Its validity may not be collaterally attacked in Guilford County. No execution had been issued thereon nor effort made to enforce it. The certificate of tax liability is made and issued at the office of the Commissioner of Eevenue at the seat of state government in Wake County. The statutes declare Wake County the *situs*of proceedings in relation to questions of review of tax liability. Under the law this certificate of the Commissioner may be transmitted to the county or counties where the taxpayer has property only for the purpose of establishing a lien on his property in that county with power to have execution issued thereon to enforce collection. Proceedings affecting the validity of the certificate and the right of the Commissioner to issue it should be instituted and conducted in accordance with the statutes, and not by motion in the county to which the certificate or transcript of assessment has been transmitted. Defendant’s pleading alleges irregularity in the procedure employed by the Commissioner of Eevenue, but the Commissioner’s power to make the assessment conferred by statute may not he denied.

In *Holden v. Totten,*225 N.C. 558, 35 S.E. 2d 635, where transcript of a money judgment rendered in Durham County had been docketed in Greene County, it was held that an action to restrain sale of land under execution could he maintained in Greene Cóunty. “But,” said *Chief Justice Stacy*in writing the opinion for the Court, “the invalidity of the judgment upon which the execution was issued may not be collaterally attacked unless it be void or unenforceable.” Proceedings to determine the correctness of the judgment in that case were properly heard in Durham.

There was no error in dismissing defendant’s motion.

Affirmed.