KUCHEL v. TOLHURST (1952)

The State Inheritance Tax Law, Revenue and Taxation Code, sec. 13984, expressly provides that where a deduction has erroneously been allowed in computing the inheritance tax due—payable by the beneficiary where it has not been paid prior to the decree of distribution by the personal representative of the estate, Rev. & Tax. Code, sec. 14101—that the Superior Court having jurisdiction may enter an order ‘assessing tax upon the amount of the deduction’ regardless of any lapse of time.

In the case before us an inheritance tax appraiser in appraising the property of the estate of which respondent was the sole beneficiary properly valued the undivided interests of the decedent in certain real property, but inadvertently deducted therefrom the total of the outstanding encumbrances against the property as a whole instead of the proportionate part thereof allocable to decedent's interest. As a consequence of this error the appraiser prepared a report for filing with the Superior Court showing that a tax of $76.59 was due when in fact the tax due was $1,099.61. Before the appraiser filed his report with the court he discovered his error and prepared a new or amended report showing that the correct tax due was $1,099.61. Through inadvertence on his part he filed with the court of probate the original report he had prepared instead of the new or amended report. Thereafter the clerk of the court having given the statutory notice of the filing of the report and the respondent not having filed any objections thereto within the time allotted by statute the court entered the usual formal order approving the report and fixing the tax at $76.59 This tax was paid by respondent and thereafter the court approved the executor's final report, entered a decree of distribution and discharged the executor. The controller did not discover the true facts until some 19 months after the decree of distribution at which time he made demand upon respondent for the sum of $1,023.02. The demand being refused the controller filed in the Superior Court in which probate of the estate was had an action against respondent as defendant to recover the amount just mentioned. In that action the controller entitled his pleading ‘Petition for determination of Inheritance Tax.’ A citation having been issued and served upon respondent he filed his ‘objections' thereto. By his objections below he contended, as he does here, (1) that the order of the probate court fixing the tax at $76.59 was res judicata; (2) that no remedy is provided by the Inheritance Tax Law to enforce the provisions of the statute, Rev. & Tax. Code, sec. 13984, relied upon by the controller; and (3) that the only statutory remedial enforcement action is Section 14531 of the Revenue and Taxation Code and that its language is not wide enough to cover the right created by Section 13984 of the same code. The controller contends otherwise.

We take up the last contention first as we are of the view that the section is not applicable as the controller contends, but we do not agree with respondent that just because this section is not applicable and there is no other statutory enforcement section that the controller is without remedy. The section mentioned applies as respondent contends only to cases where the ‘taxability, tax liability, and amount of tax have not been determined’. In the case before us the probate court had determined these factors quoted from the section. But the mere fact that neither this section nor any other section of the Inheritance Tax Law provides a remedy by which the controller can enforce the rights given him by Section 13984 is immaterial, because the court can, must and will supply a remedy for the right. 1 C.J. 986, sec. 95; 1 C.J.S., Actions, § 4c, P. 971; Burson v. Cowles, 25 Cal. 535, 536.

We come next to the contention that the order of the probate court fixing the amount of the tax was res judicata. Assuming, without deciding, that it was res judicata or that it could be so regarded in the absence of a statute cutting down the sweep of a judgment, we have no such case here. If we view the order as being in every respect res judicata we are at once faced with the fact that even under such a holding that Section 13984 must be deemed to create a new or separate right. If on the other hand we view the section as restricting the res judicata effect of the order, we know of no reason and none has been suggested to us, why the legislature could not constitutionally do so.

A further contention of the respondent, which we have not so far mentioned is that the error made by the appraiser was not that of erroneously allowing a deduction which should not have been allowed, but in erroneously filing the wrong report. We decline to discuss such a fanciful and hypercritical contention.

The judgment is reversed with instructions to the court to enter judgment for the amount claimed by the controller.

HANSON, Justice pro tem.

WHITE, P. J., and DORAN, J., concur.