v. 743
Monroe State, 157 Ind. 45 on 48;
Board, etc. v. Board, etc., 27 Ind. App. 378 on 406.
Under the statutes referred to in this letter and the law as declared by the Supreme and Appellate 'Courts of Indiana, in the cas~s .heretofore cited, it is my opinion that the deputy assessors involved are entitled to a per diem for assessing
and also a per diem for enumeration of male voters, provided
both services are rendered on the same calendar day.
GROSS INCOME TAX DIVISION: Duty of sheriff acting under tax warrant with respect to intangibles.
December 29, 1943.
Hon. Gilbert K. Hewit, Director, Gross Income Tax Division, 141 South Meridian Street, Indianapolis, Indiana.
Dear Sir:
Your letter requests an offcial opinion upon the following question:
"To what extent maya sheriff, acting under a warrant issued pursuant to Section 13 (a) of the Gross
Income Tax Act of 1933 as amended, levy upqn sucJ; intangible items as open accounts, judgments, rents, and wages owing to the taxpayer by other persons?"
Section 13 (a) of the Gross Income Tax Act of 1933, 64-2613
Burns 1933, was amended by the Acts of 1937, Chapter 17,
Section 13 (a:), page 604, 64-2613, Burns' 1933 Supplement as follows:
"If any tax imposed, or any portion of such tax, be
not paid
within thirty (30) days after the same is
found to be due, the department shall issue a warrant under its offcial' seal, directed to the sheriff of any
county of the state, eommanding him to levy upon ar
sell the real and personal propBrty of the pierson owing
said tax, foiind within his county, for the payment of
744
the amount thereof, with damages to the amount of ten
(10) per cent of the tax, in addition to the penalties
imposed for failure to make to the penalties imposed under
a return, and in addition
section 11 (Sec. 64-
2611) of this act, and interest, and costs of executing
the warrant, and to return such warrant to the department and pay to it the money collected by virtue there-
of, by a time to be therein specified, not more than sixty (60) days from the date of the warrant. 'The sheriff shall, within five (5) days after the receipt of the warrant, file a copy thereof with the clerk of the circuit court of his county, and thereupon the clerk shall enter in the judgment record, iIi the column for judgment.
debtors, the name of the taxpayer mentioned in the warrant, and in the appropriate columns, the amount of the tax, or portion thereof, and damages, for which the warrant is issued, and the day when such copy is filed; and thereupon the amount of' such warrant so
docketed shall become a lien upon the title to and inter- "-
est in real and personal property, including choses in .
action except negotiable instruments not past due, of
the person against whom it is issued, in the same man-
ner as a judgment duly enrolled in the offce of such
clerk. The sheriff thereupon shall
levy upon any prop-
erty of the taxpayer, including negotiable instruments, in all respects with like effect, nd in the manner prescribed by law in tespect to exeGutions issued against
property upon judgments or attachment proceedings'
. of a court of record, and the remedies by garnishment
shall apply. * * *." (Our emphasis.)
The above section provides for tax lien upon "personal property, including choses in action, except negotiable instru-
ments not past due." Later the same section provides that
the sheriff m~y levy upon negotiable instruments, without any distinction being made as to whether the instruments are past
due or not, and it was the obvious intention of the Legislature
to protect a bona fide purchaser of a negotiable instrument
not due, but to provide that the same may levied be upon and taken into possession by the sheriff for the purpose of sale to
'satisfy the tax warrant.
745
This section of the statute was intended to provide for the
satisfaction of a gross income tax warrant, and to specify
the property subject to the lien, levy and sale. Under the general execution statutes, certain choses in action may be levied upon and sold, but in construing the gross income tax act unless it provides for an exemption, no such exemption exists, and any doubt must be resolved in favor of the tax
rather than its exemption.
Storer v. Jasper County Farm Bureau C-Opera-
tive Assn. (1936), 103 App. 77, 2 N. E. (2d)
432.
The Supreme Court of this state has well defined a chose in action as a thing which a man is not in actual possession of,
but which he has the right to demand by
action.
Board of County Commissioners v. State ex reI. Cottingham (1888), 115 Ind. 64, 84;
See also Vawter v. Griffn (1872), 40 Ind. 593,
601;
Miami Coal Co. v. Fox (1931), 203 Ind. 99, 108, 176N. E. 11.
Under these authorities, open accounts, rents and wages
owing to the taxpayer by other persons are all choses in action. Likewise, a judgment has been held~' chose in action.
VoL. 7, Words and Phrases, P. 141, and authorities cited.
The phrase "in all respects with like effect and in the manner prescribed by law in respect of executions issued against property upon judgments" is not a limitation upon the extent of the lien, or a prohibition against the sheriff in the sale of such personal property to satisfy the tax warrant. To so hold would make the section absurb, which is a construction to be
avoided if. possible.
Brownlee v. Princeton (1926), 198 Ind. 148, 152
N. E. 828;
Groher v. Colgate-Palmolive-Peet Co. (1932), 94.
Ind. App. 234, 178 N. E. 242.
746
. The phrase "in the same manner" has generally been construed to mean a method of procedure, and does notrestrict or limit substantive rights. It means by similar proceedings, so
far as such proceedings are applicable to the subject-matter.
Wilder's S. S. Co. v. Low, 112 Fed. 161;
Philips v. Middlesex County, 122 Mass. 258, 260.
The effect of this provision is not so much to restrict the
kind of property which may be levied upon, but to provide that the property levied upon may be sold as other personal
property, including choses in action, may be sold upon an
ordinary execution. However, since the tax obligation does
not arise from contract, there would be no exemption for the benefit of the taxpayer owner.
This is not the only remedy afforded the State of Indiana,
since the statute further provides "and the remedy by garnishment shall apply." However, if the Gross Income Tax Divi-
sion sought to take advantage of proceedings in' garnishment,
the general provisions of the garnishment act would apply
as in an ordinary. garnishment proceeding.
Therefore, it is my opinion that Section 13 (a) of the Gross Income Tax Act of 1933 as amended in 1937 provides for the
acquiring of a tax lien
upon all personal property, including
choses in action, except negotiable instruments not past due,
and that the sheriff shall levy upon any personal property of the taxpayer, including negotiable instruments, and including the choses in action specified in your letter, aIl of which may be
sold to satisfy the tax warrant, and that such sale be held and conducted, so far as applicable, in conformity with the general
execution laws of the state providing for sales of personal
property and certain choses in action upon execution, and that
the Gross Income Tax Division has the further right, in its discretion, to bring an action in garnishment against the delinquent taxpayer.