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of personal property and the value thereof, and the value of the unenumerated articles, and the value of the moneys, credits and investments of such person. For this purpose he may examine on oath any person whom he thinks has knowledge thereof. (R. S. Sec. 2750.)

Upon what information the assessor shall act.

SEC. 5392. When the failure to make or verify such statement is occasioned by the sickness or absence of the person who should make or verify it, or by his neglect or refusal so to do, the assessor, if unable to obtain positive evidence of the items or value, may make the statement from general reputation and his own knowledge of facts and circumstances. (R. S. Sec. 2751.)

Oath of assessor to return.

SEC. 5395. The assessor, upon making return to the auditor of the lists and statements, shall take and subscribe an oath, administered by the auditor, or an official authorized to administer oaths; as follows:

I,

assessor for

in the county of do solemnly swear that the value of all personal property, moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, of which a statement has been made to me by the person required by law to list them, is truly returned as set forth in such statement; that in each case where by law I have been required to ascertain the items and value of the personal property, moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, of a person, company or corporation, I have diligently, and by the best means in my power, endeavored to ascertain them; and that, as I verily believe, a full list, with the value thereof estimated by the rules prescribed by law, is set forth in the annexed return; that in no case have I knowingly omitted to demand of any person, of whom by law I was required to make such demand, a statement of the description and value of personal property, of the amount of moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise which he was required to list, or failed to endorse on any return made by me in cases in which the owner refused or neglected to list, or swear, the words "refused to list," or "refused to swear," or "failed to swear," as required by law, any person who purports to have been sworn as returned by me, or in any way connived at any violation or evasion of any of the requirements provided by law in relation to the listing or valuation of property, moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, of any kind for taxation, and that I have returned to the county auditor the original statements made to me, or which I have made, and also the statistics which by law I am required to procure and return. (R. S. Sec. 2757.)

Listing shares of building and loan association for taxation.

SEC. 9675. The shares and loans advanced to its members. shall be exempt from taxation, except that shares of stock upon which no loans have been made or money advanced by the company. shall be considered and held as credits. The members individually shall list for taxation the number of shares held by them, and the true value thereof in money, on the day preceding the second Monday in April each year, and they shall be assessed at such valuation for taxation and taxes as other property. (99 v. 532 § 26.)

A building and loan association is not required to list its surplus and profits for taxation separately; but the real property owned by a building and loan association is subject to the laws relating to the taxation of real property whether purchased by surplus and profits, or not: Gruner v. Loan Association, 85 O. S. 484.

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Persons may make statement after assessor has made same.

SEC. 5397. When any person has been prevented from making or verifying a statement of property for taxation, by sickness or absence, and the assessor has made a statement for him, at any time before the assessment of taxes thereon by the county auditor, such person may make, verify, and file with the auditor the proper statement. In such case before the auditor shall receive the statement the person making it must add to the ordinary affidavit, a statement to the effect that his failure to give to the assessor or verify the statement at the proper time was occasioned by sickness or absence. On the filing of such statement the auditor shall correct the statement made by the assessor. (R. S. Sec. 2752.)

False return; penalty.

SEC. 5398. If a person required to list property or make a return thereof for taxation, either to the assessor or the county auditor, in the year 1911 or in any year thereafter makes a false return or statement, or evades making a return or statement, the county auditor for each year shall ascertain as near as practicable, the true amount of personal property, moneys, credits, and investments that such person ought to have returned or listed for the year 1911 or for any year thereafter for which the inquiries and corrections provided for in this chapter are made. To the amount so ascertained as omitted for each year he shall add fifty per cent., multiply the omitted sum or sums, as increased by said penalty by the rate of taxation belonging to said year or years, and accordingly enter the amount on the tax lists in his office, giving a certificate therefor to the county treasurer who shall collect it as other taxes. (R. S. Sec. 2781.)

This statute applies to corporations as well as to natural persons: Insurance Co. v. Hard, 59 O. S. 248. This statute does not apply to taxation imposed for the sale of intoxicating liquors: Markle v. Newton, 64 O. S. 493. This statute does not apply to the cashier of a bank, but only to persons who are required to make return of their property for taxation: State, ex rel., v. Akins, 63 O. S. 182.

The provisions which authorizes the county auditor to add to the return of the property owner taxable property which the owner has not included in his return is remedial and valid, even if made applicable to returns which were made before the enactment of such statute: Gager v. Prout, 48 O. S. 89; see, also Sturges v. Carter, 114 U. S. 511.

To constitute a false return there must appear either a design to mislead and deceive, or at least such culpable negligence in the making of a return as carries with it the consequences of intentional default: Ratterman v. Ingalls, 48 O. S. 468 [followed and approved, Probasco V. Raine, 50 O. S. 378).

The omission of stock which was registered and which could not be concealed is not a false return, whether or not such stock was exempt from taxation, if such omission was made in the bona fide belief that such stock was exempt from taxation: Probasco v. Raine, 50 O. S. 378.

If the return of an insurance company includes an item of reinsurance and states the amount thereof correctly, but lists it as a debt, whereas it is not in legal effect a debt, such return is not false, within the meaning of this statute, since it discloses upon its face the facts necessary to determine the amount which should be listed: Insurance Co. v. Cappellar, 38 0. S. 560.

If one acts in good faith, believing that he has no money or credits taxable, his return, even though erroneous, is not false, and the penalty should not be imposed: Stewart v. Duerr, 20 O. C. C. 505, 11 O. C. D. 310.

Proceedings before a county auditor for the correction of false returns made by the owner of taxable property are not governed by the precise rules of the code of civil procedure,

regulating the commencement and prosecution of civil actions. No particular style for the proceeding, or form of notice, is prescribed, and it is sufficient if the notice fairly informs the party of the nature of the proceeding and the capacity in which he is required to appear and answer: Gager v. Prout, 48 0. S. 89.

If a note has been conveyed by the holder thereof to another in trust, in order to avoid listing the same for taxation, the county auditor may add such note to the return of such holder: Sisler v. Foster, 72 O. S. 437.

If the owner of property makes a false return and dies before complaint is made, the auditor may correct such return and add fifty per cent. penalty: Genin's Executor v. Auditor, 18 O. S. 534.

If a taxpayer who has omitted property from his return adds the same voluntarily, no penalty attaches, and the auditor is not entitled to the additional percentage therefor: Topliff v. Shields, 1 0. D. (N. P.) 551, 32 Bull, 74.

The auditor can make corrections in tax returns for the number of years specified by statute: Ratterman v. Ingalls, 48 O. S. 468; Probasco v. Raine, 50 O. S. 378; Rheinboldt v. Raine, 52 O. S. 160.

In Ratterman v. Ingalls, 10 Dec. Rep. 748, 23 Bull. 260, it was held that taxes assessed for former years, under this section, should be placed upon the tax list of the year in which the correction is made.

The proceedings of the auditor may be reviewed in court under G. C. § 12075: Hagerty V. Huddleston, 60 Ö. S. 149.

The proceeding of county auditors, under this section and G. C. § 5401, authorizing such auditors, in certain cases, to make additions to the valuation of the property of individuals, returned for taxation, cannot be reviewed on error under G. C. § 12241. The remedy of the individual for errors or mistakes in such cases, prejudicial to him, is by injunction under G. C. 12075: Musser v. Adair, 55 O. S. 466.

The view that the auditor in listing this property acts in a judicial capacity was expressed in Myers v. Shields, 61 Fed. 713, 8 O. F. D. 239; Brinkerhoff v. Brumfield, 94 Fed. 422, 10 O. F. D. 88.

That the auditor acts in a quasi judicial capacity, see State, ex rel, v. Crites, 48 O. S. 460. Such proceedings were, however, held not to constitute due process of law: Myers v. Shields, 61 Fed. 713, 8 O. F. D. 239; Brinkerhoff v. Brumfield, 94 Fed. 422, 10 O. F. D. 88.

The court will not enjoin the auditor from placing upon the duplicate, in the name of the owner thereof, property which such owner has tried to omit from listing for taxation by conveying it temporarily under a deed of trust: Sisler v. Foster, 72 O. S. 437.

Mandamus lies to compel the auditor to act in cases coming within this section: State, ex rel., v. Crites, 48 O. S. 460.

A wilful under-valuation of property returned for taxation is alone sufficient to constitute a "false return" within the meaning of that term as found in this section. Insurance Company v. Hard, 59 Ohio State 248.

Omission; "Personal property" defined.

SEC. 5399. If any person required to list property, or make a return thereof for taxation to the assessor or county auditor, or to a board, officer, or person, other than a board composed of officers of more than one county, in the year nineteen hundred and eleven, or in any year or years thereafter fails to make a return or statement, or if such person makes a return or statement of only a portion of his taxable property, and fails to make a return as to the remainder thereof, or if he fails to return his taxable property or part thereof, according to the true value thereof in money, as provided by law, the county auditor for each year as to such property omitted and as to property not returned or taxed according to its true value in money, shall ascertain as near as practicable the true amount of personal property, moneys, credits and investments that such person ought to have returned or listed, and the true value at which it should have been taxed in his county for not exceeding the five years next preceding the year in which the inquiries and corrections provided for in this section and in the next preceding and the next two succeeding sections are made and not in any event prior to the year nineteen hundred and eleven, and multiply the omitted sum or sums by the rate of taxation belonging to said year or years, and accordingly enter the amount on the tax lists in his office. giving a certificate there for to the county treasurer, who shall collect it as other taxes. The term "personal property" as used in this section shall apply to all kinds of omitted property for the taxation of which, for any of the years in which it was omitted, provision has not been made by law. (R. S. Sec. 2781a.)

This section is constitutional: Assurance Co. v. Halliday, 127 Fed. 830, 14 O. F. D. 305. This section is remedial in its character, and is not intended by the legislature to operate as a statute of limitations: Insurance Co. v. Gibson, 1 0. N. P. (N. S.) 24, 14 O. D. (N. P.) 80.

Property which has been omitted is to be placed upon the duplicate and taxes imposed thereon, whether such omission was innocent or fraudulent: French v. Insurance Co., 12 0. D. (N. P.) 183.

The bank cashier and not the owner thereof is required to return shares of bank stock: State, ex rel., v. Akins, 63 O. S. 182.

Assessment by board.

SEC. 5400. The power and duty of the county auditor under the provisions of the next preceding section, shall extend to all cases where property, taxable within his county,

has for any reason not been assessed and taxed according to its true value in money, as provided by law, except that where provision is made by law for the appraisement and assessment of property by a board composed of officers of more than one county, and such property or part thereof has escaped taxation, the duties provided in such section shall be performed by such board. The board, at any subsequent meeting, may appraise and assess such omitted property for the year or years so omitted, and certify its assessment to the proper officer or officers to be placed upon the tax lists of the proper county or counties for the collection of omitted taxes thereon in a like manner as current assessments are certified by said board, and such officer or officers shall give a certificate therefor to the county treasurer, as in other cases. (R. S. Sec. 2781a.)

Corrections in return of assessor; notice by auditor.

SEC. 5401. The county auditor, if he shall have reason to believe, or is informed that a person has in the year nineteen hundred and eleven or in any year thereafter, given to the assessor a false statement of the personal property, moneys, or credits, investments in bonds, stocks, joint-stock companies, or otherwise, that the assessor has not returned the full amount required to be listed in his ward or township, or has omitted or made an erroneous return of property, moneys, or credits, investments in bonds, stocks, joint-stock companies, or otherwise, which are by law subject to taxation, shall proceed, in said year nineteen hundred and eleven or in any year thereafter at any time before the final settlement with the county treasurer to correct the return of the assessor, and charge such persons on the duplicate with the proper amount of taxes. To enable him so to do, he may issue compulsory process, and require the attendance of any persons whom he thinks have knowledge of the articles, or value of the personal property, money or credits. investment in bonds, stocks, joint-stock companies, or otherwise, and examine such persons, on oath, in relation to such statement or return. The auditor, in all such cases, shall notify every such person, before making the entry on the tax list and duplicate, that he may have an opportunity of showing that his statement or the return of the assessor was correct. The auditor, in all such cases, shall file in his office a statement of the facts or evidence upon which he made such correction; but, he shall not reduce the amount returned by the assessor, without the written assent of the auditor of state, given on a statement of facts submitted by the county auditor. (R. S. Sec. 2782.)

This statute is designed not to make one pay more than another, but to compel all to contribute proportionately from their property to the support of the common government: Musser v. Adair, 55 O. S. 466.

This section does not apply to taxes imposed upon the sale of intoxicating liquors: Markle v. Newton, 64 O. S. 493.

This section relates to returns which are incorrect as well as to those which are false: Patton v. Bank, 7 O. N. P. 401. 10 O. D. (N. P.) 321.

Shares of stock in a national bank are to be listed in the names of the owners, and this section does not apply to the return of a cashier: Miller v. Bank, 46 O. S. 424.

This section applies only to persons who are required to return property which belongs to them personally, and does not apply to a cashier's return of the property of a bank: State, ex rel., v. Akins, 63 O. S. 183.

Since it is the duty of the cashier of a bank to return stock for taxation, the failure or omission of the owner of such stock not to return it for taxation does not amount to a false return: State, ex rel., v. Akins, 63 O. S. 182; see, also, French v. Insurance Co., 12 0. D. (N. P.) 183.

The phrase "false statement" in this section means merely an omission of property from taxation, and in this respect it differs from G. C. § 5398, where the expression "false return" means a guilty evasion: Ratterman v. Ingalls, 48 O. S. 468.

The notice provided for in this section does not relate to or cover proceedings under G. C. 5398: Mvers v. Shields, 61 Fed. 713, 8 O. F. D. 239, 31 Bull. 336.

If the auditor believes that a false statement of property has been made, notice to the taxpayer to appear the next day to show whether the return was correct or not. is unreasonable, since it does not give sufficient time to the taxpayer to present facts which he may wish to have considered: Wells v. Adair. 11 Dec. Rep. 783. 29 Bull. 205.

No particular form of notice is required, it being sufficient if a fair opportunity is given to the taxpayer to present facts which he may wish to have considered: Gager v. Prout, 48 O. S. 89; Lee v. Dawson. 8 O. C. C. 365. 4 O. C. D. 442.

Notice given to a property owner while he is in attendance before the auditor in pur

Euance to another notice has been held to be sufficient: Sturges v. Carter, 114 U. S. 511,

5 O. F. D. 428.

The auditor may procure information on his own motion, but the law does not impose upon him the duty of search therefor: State, ex rel., v. Gilfillan, 3 0. N. F. (N. S.) 153, 15 O. D. (N. P.) 756 State, ex rel., v. Lewis 4 0. N. P. (N. S.) 454, 17 O. D. (N. P.) 370. The requirement that the auditor file a statement of the evidence upon which he has corrected the returns contemplates giving information to the property owners as to the facts: Bowland v. Shoe Co., 10 O. N. P. (N. S.) 243, 21 O. D. (N. P.) 210.

The auditor may add to the tax duplicate without taking testimony or hearing evidence: Bowland v Shoe Company, 10 O. N. P. (N. S.) 243, 21 O. D. (N. P.) 210. A notice by auditor that a complaint had been made and that taxes would be increased unless cause be shown to the contrary, is sufficient notice to increase tax returns: v. Shoe Company, 10 O. N. P. (N. S.) 243, 21 O. D. (N. P.) 210.

Bowland

The county auditor may compel the cashier of a bank to appear and testify, and bring with him the books of the bank showing its deposits, or at least the bank has no such interest in maintaining the secrecy of its depositors' accounts as will enable it to enjoin the_auditor from such action: Bank v. Hughes, 106 U. S. (16 Otto), 523, 5 O. F. D. 161; Bank v. Hughes, 6 Fed. 737, 5 O. F. D. 3. (Note however the provisions of section 5624-13, 106 v. 264, No. 66).

If the auditor of the county refuses to act when sufficient information is furnished to him showing that property has been omitted from taxation, mandamus will lie to compel such auditor to act: State, ex. rel., v. Crites, 48 O. S. 142; State, ex rel., v. Godfrey, 4 O. C. C. (N. S.) 465, 14 O. C. D. 455 [affirming State v. Godfrey, 13 O. D. (N. P.) 535].

The powers conferred upon the county auditor by provision of section 5401 General Code may be exercised before the completion of the tax list as well as thereafter; the only notice required to be given in connection with the exercise of such powers is that provided in said section. A. G. R. 1916.

Costs and expenses, how paid.

SEC. 5402. If a person makes a false statement of the amount of property for taxation, to wholly or partially evade the payment of taxes, he shall pay all costs and expenses that may be incurred under the provisions of the next preceding section, and like fees and costs shall be allowed and paid as are allowed by law, for similar services, and if not paid, may be collected before any justice of the peace of the proper county, by suit in the name of the county commissioners. In all cases under such section, where the statement is found correct, and no intention to evade the payment of taxes appears, the costs and expenses incurred shall be paid out of the county treasury of the proper county, on the order of the county auditor. (R. S. Sec. 2782.)

Penalties; contempt proceedings.

SEC. 5403. When a person summoned to appear before the county auditor and give testimony, under the provisions of the next two preceding sections, or in proceedings against companies or corporations required to make return to the county auditor for taxation, neglects or refuses to appear, or neglects or refuses to answer a question that is put to him by the auditor touching the matter under examination, the auditor shall apply to the probate judge of the county to issue a subpoena for the appearance of such person before him. On the application of the county auditor, the probate judge shall issue a subpoena for the appearance of such person forthwith before him to give testimony. If any person so summoned fails to appear, or appearing, refuses to testify, he shall be subject to like proceedings and penalties for contempt as witnesses in actions .pending in the probate court. (R. S. Sec. 2783.)

Cited State v. Godfrey, 13 O. D. (N. P.) 535; Assurance Co. v. Halliday, 127 Fed, 830, 14 O. F. D. 305.

Subsequent additions prohibited and changes in valuations not allowed.

SEC. 5403-1. From and after the passage of this act no county auditor, assessor or other officer shall place upon the tax list or duplicate for taxation as of the year nineteen hundred and ten, or as of any year preceding said year, any personal property which should have been assessed for taxation as of such year but which was not returned for taxation therein; nor shall any such officer change in any manner the valuation of the year nineteen hundred and ten. or for any preceding year, of personal property returned for taxation in such year, any act heretofore passed to the contrary notwithstanding: and all acts and parts of acts insofar as they relate to the assessment and valuation of personal property for taxation for the year nineteen hundred and ten, or any preceding year, and insofar as they are inconsistent with the provisions of this section, are hereby repealed. (Act of May 31, 1911, 102 v. 266, Sec. 2.)

Monthly statement of probate court to county auditor.

SEC. 10661. At the end of each month the court shall deliver to the county auditor, a statement showing as to each inventory the aggregate value of each class of property other than real, as shown by the inventories filed during that month, for his use and the use of the proper board of equalization in the performance of their respective duties in relation to returns for taxation of personal property. moneys, rights and credits, and the equalization and correction thereof. (R. S. Sec. 6044.)

Taxes and penalty.

SEC. 10662. Taxes or penalty lawfully placed on a duplicate or added by the county auditor or board of equalization because of a failure to make a true return, or of making a false return for taxation, shall be a debt of the decedent, to have the same priority and be paid as other taxes, and collectable out of the property of the estate either before or after distribution, by any means provided by law for collecting other taxes. No distribution, or payment of inferior debts or claims shall defeat such collection; but no such tax

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