The Hawaiian gazette., 1907-12-06
TAXES Of FIVE
YEARS ARE VOID

: lecIOr, TlTst ldAdtloh DiNisiOn, dSdlnS
!, E. J. Monsarrat. The assessments o
five years stated on the Monsarra
property at Union street and Adam
lane. in which defendant has a lif,
interest are declared to be void. Some
thing like $1,000 in taxes is thereby
uncollectable.
AS the case is entirely a new one
here, with respect to the law points
involved, the decision is here given in
full:
The plaintiff, as assessor and collec-
tor of taxes, brings this action against
the defendant to recover the sum of
s1S03.9s, together with penalty and in
terest thereon and costs. OF this sum,
SO claimed, s24S is for taxes assessed
against the person and income of the
defendant for the years 1901 and 1868,
and s1S01.5O thereof is for taxes as
sessed against the person and prop
erty of the defendant for the years
1899 to 1905 inclusive.
The property mentioned consists of a
certain lot of land and improvements
thereon, situated at the junction Of
Union street and Adams lane in Ho-
nolulu, and personal property of small
value.
The land was conveyed to the de-
PENDANT to have and to hold for and
during the term of her natural life,
with remainder over to others, by deed
of May &c, 1884, which deed was duly
recorded on June 90 1884.
For the years 1899, 1900, 1901 and
1903 no returns were made of the prop
erty and the assessor assessed the same
to the defendant as absolute owner
thereof.
, For the years 1902 and 1905 returns
were made for the property by ]. NJ.
Monsarrat as the attorney in fact for
the defendant. At the trial herein,
however, he testified that he had no
authority to make the returns, and that
he made and swore to them as a mat
ter of convenience only. There being
no evidence tending to contradict this
testimony or to operate by way of es-
toppel against the defendant, it follows
necessarily that defendant can not be
bound by these returns. Consequently
they will not be considered.
For the year 1904 the property was
returned by the defendant personally.
and for that year she comedies that she
is liable for the taxes. She also con-
cedes her liability for the income tax
of s2.4S for the years 1901 and 1908.
Beyond these concessions she contends
that the plaintiff is not entitled to re-
cover, and that the assessments having
not been made in accordance with Sec
ton 1917, Revised Laws, they are void.
A valid assessment is indispensable to
a recovery by the Territory for taxes
alleged to be due and payable.
Subject to constitutional restrictions,
it is for the legislature within it's dis
cretion to provide the method and mode |
of assessing property for purposes of
taxation. The assessment should be |
made in accordance with these provis- |
ions, and with the securities and So
emnities provided by statute" q Ency. |
Law, 667
1.-The revenue laws usually direct the
assessment to be made against the |
person liable for the taxes, and in his
name. This requirement is held to be
'or the benefit and protection of the
.axpayer, and mandatory in the alb
;ence of legislation to the contrary;
Herewith by the assess
ng officers rendering the assessment
Toid" I'D. 672)
Section 1917 (R. L., which is clear
md explicit, provides that
s"The interest of every person in any
property shall be separately assessed
and every person shall be liable
o taxation in respect of the full value
f his interest in such property"
No appeal having been taken from
ny of the assessments, the plaintiff
low contends that the defendant can
ot successfully plead that such as
We're and are illegal. But,
S 1 understand the law to be, the alb
dilute illegality of an assessment may
e successfully pleaded in defense, al
hough no appeal has been taken from
UGH assessment.
"A tax cannot be enforced or collect
d until it has been assessed as pro-
ided by law" q Ency. P. & P. S79. /
The question thus presented for con-
Iteration is. were these assessments {
old or not?
Blackwell on Tax Titles (Vol. l, Sec.
a.. with regard to the assessment of |
ifferent interests in the same land, /
lys:
Land held in idivision must be as I
essed according to the title. Only the (
ndivided interest of a joint owner can 7
e legally assessed as his property,
nd not any definite part or stipulated t
lumber of acres. An assessment is the r
'undation of tax proceedings, and is h
Ike judgment. Surely, sheriff could +
ot seize and sell certain number of a
,res, or definite part of land held f
A., the judgment debtor, in in v
vision with B., and make delivery +
the same to the purchaser. Under a $
atute requiring apportionment be- a
veen those having separate estates r
the land, a street assessment upon l,
nd of A. B. cannot be assessed wholly r
the husband of A. B., who has only IT
life estate in her land, but must be ?,
'portioned to each in proportion to the a
ght of property
Hillard, Law on Taxation (Sec. 90), a
US: with reference to the various =.
'ints, of description of the prop :,
ty and the party taxed, and a vaiu- -
ion of the property, as affecting the =
Ilidity of the assessment: in general. :,
e assessment must be certain In des- :,
mating the person chargeable, the :,
Mount of the charge, and the proper =
upon which the assessment is made. 1o
order to create a liability to pay