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STATE of Georgia
V.
}
HIGGINS.
No. 11782.
Supreme Court of Georgia.
March 5, 1985.
Defendant demurred to accusations of failure to paying state income taxes and failure
to timely file a state income tax return. The Fulton State Court, Charles Carnes,
J., sustained demurrers, and the State appealed. The Supreme Court, Marshall, PJ.,
held that:
(1) statute making failure to pay any tax a misdemeanor
offense violates constitutional provision prohibiting imprisonment for debts, and
(2) trial court did not err in sustaining demurrer to charge
of failure to make timely return.
Affirmed.
Weltner, J., filed a concurring opinion.
1. Constitutional Law 83(3)
Taxation 952
Income tax is a “debt”; therefore, statute making failure to pay any
tax a misdemeanor offense violates constitutional provision prohibiting imprisonment
for debts to the extent that statute authorizes imprisonment for mere nonpayment
of income taxes. O.C.G.A. §~ 48-7-2, 48-7-2(a(l). See publication Words and Phrases
For other judicial constructions and definitions.
2. Constitutional Law 82(6)
Taxation 952, 1103
There is no constitutional inhibition against criminalizing failure to make income
return and trial court should not have sustained demurrer to that accusation on
constitutional grounds; however, accusation charged defendant with failure to make
“timely return,” and since statute made it unlawful merely to fail to
make return, trial court did not err in sustaining demurrer on the basis of that
variance. O.C.G.A. § 48-722.
Donald C. English. Asst. Sol. Gen., Atlanta. for State of Ga.
Michael J. Bowers, Atty. Gen., Jeffrey L.
Listeen, amicus cunae.
Denmark Groover, Macon, for Robert F.
tgginS.
MARSHALL, Presiding Justice.
Two criminal accusations were returned against the appellee. One was for failure
to pay state income taxes, and the other was for failure to timely file a state
income tax return. The offenses were alleged in the accusations to have occurred
in separate years from 1978 through 1983. Under OCGA § 48-7-2, the failure to pay
any tax and the failure to make any return are made misdemeanor offenses. The appellee
demurred to the accusations on various grounds, one of which being that the foregoing
statute violates the provision of our state Constitution prohibiting imprisonment
for debt. Art. I. Sec. I, Par. XXIII of the Georgia Constitution of 1983. The state
court sustained the demurrers. The state appeals.
1. The Georgia Constitution’s prohibition against
imprisonment for debt has undergone gradual modification throughout our state’s
history.
This constitutional provision first appeared in the Georgia Constitution of 1798
as Art IV, Sec. VII. It provided as follows: “The person of a debtor, where
there is not a strong presumption of fraud, shall not be detained in prison after
delivering up, bona fide, all his estate, real and personal, for the use of his
creditors, in such
manner as shall be hereinafter regulated by law.” See McElreath, Constitution
of Georgia, § 408, p. 265. This provision was modified in the Georgia Constitution
of 1861, Art. I, Sec. XXVI, to provide the following: “The person of a debtor
shall not be detained in prison after delivering bona fide all his estate for the
use of his
creditors.” McElreath, supra, at § 465, p. 283.
Four years later in the Georgia Constitution of 1865, Art. I, Sec. XIX, this constitutional
provision was again changed to provide: “The person of a debtor shall not
be detained in prison, after delivery, for the benefit of his creditors, of all
his estate not expressly exempted by law from levy and sale.” Id. at 567,
p. 300. Three years after that, in the Georgia Constitution of 1868, Art. I, Sec.
XVIII, this provision was once again changed to succinctly provide: “There
shall be no imprisonment for debt.” This language from the Georgia Constitution
of 1868 has been carried forward in identical form in the Georgia Constitutions
of 1877, 1945, 1976, and 1983.
As stated in Messenger v. State, 209 Ga. 340, 341, 72 S.E.2d 460 (1952),
“The inhibition of the Constitution applies to any and all imprisonment for
debt, irrespective of the period of its duration or the means whereby it is accomplished.”
2. Most state constitutions contain provisions which, in
one form or another, prohibit imprisonment for debt. 48 A.L.R.3d1324, Anno., Constitutional
Provision Against Imprisonment for Debt as Applicable to Nonpayment of Tax. The
parties dispute the interpretation of the cases contained in this ALR Annotation.
The interpretation of these cases is summarized in 2 of the Annotation at pp. 1326-4327;
and this summary, which we cite immediately below, sustains the interpretation advocated
by the appellee:
“Upon the theory that constitutional guaranties against imprisonment for debt
have as their purpose the prevention of the useless and often cruel imprisonment
of persons who, having honestly become indebted to another. are unable to pay as
they undertook and promised, the courts in some cases have apparently taken the
general view that unpaid taxes are not ordinarily debts’ within the contemplation
of the constitutional provision. A broader rationale has been relied upon in some
cases in which it was said that debt under the provision refers only to contractual
obligations. and where the prohibition expressly omits debts to those founded upon.
or arising out of contract, it has been held that taxes clearly are not included.
And upon the view that the penalty of imprisonment for nonpayment of taxes or license
fees upon occupations, privileges, and similar activities is imposed, not for refusal
or inability to pay the tax but for violation of a duty imposed upon the taxpayer
by the law, the courts in many cases have held that statutes, ordinances, and other
regulations imposing such taxes or license fees may lawfully authorize the imprisonment
of those who fail to pay. A distinction, however, has been drawn between those cases
involving taxes on occupation or excise taxes and those dealing with income taxes,
and it has been held that ‘debt’ as used in the constitutional prohibition
includes income taxes and other taxes not imposed for the pursuit of an occupation
or the exercise of a privilege.
“While the constitutional prohibition may sometimes be regarded as including
taxes within the term ‘debt,’ some provisions allowing imprisonment
in case of fraud have been interpreted to exempt from their general prohibition
willful refusal to pay occupation and other taxes.
“In summary, it must be emphasized that under all the various particular constitutional
provisions applicable in certain circumstances stated, it has been held in the overwhelming
majority of cases that imprisonment for nonpayment of taxes, or at least for the
exercise of the occupation or privilege conditioned upon their payment, or for the
nonpayment of penalties associated with the initial failure to pay, does not come
within the prohibition of the constitutional provision against imprisonment for
debt. The outstanding exception has been imprisonment for mere nonpayment of income
taxes.” (Emphasis supplied: footnotes omitted.)
3. OCGA § 48-7-2 provides, in full: ‘(a) It shall
be unlawful for any person who is required under this chapter to pay any tax, make
any return, keep any records, supply any information, or exhibit any books or records
for the purpose of computation, assessment, or collection of any tax imposed by
this chapter to fail to:
(1) Pay the tax; (2) Make the return; (3) Keep the records;
or (4) When requested to do so by the commissioner: (A) Supply the information;
or (B) Exhibit the books or records. (b) In addition to other penalties provided
by law, any person who violates subsection (a) of this Code section shall be guilty
of a misdemeanor.” (Code 1933, § 92-3217, enacted by Ga.L.1937. p. 109, §
17; Code 1933, § 91A-9930, enacted by Ga.L.1978, p. 309, § 2.)
[1] 4. We hold that an income tax is a debt-albeit a public debt, as opposed to
a private, contractual debt. It is, however, a debt nonetheless. Therefore, we agree
that § 48-7-2(a){1) is unconstitutional on state law grounds to the extent that
it authorizes imprisonment for mere nonpayment of income taxes. The state court
did
not err in sustaining the demurrer to the accusation for nonpayment of state income
taxes on this ground.
[2] 5. However, we perceive no constitutional inhibition against criminalizing the
failure to make an income tax return. Consequently, the trial court should not have
sustained the demurrer to that accusation on constitutional grounds. But, that accusation
charges the appellee with failure to make a “timely return,” whereas
the statute makes it unlawful merely to fail to make a return. We cannot say that
the trial court erred in sustaining the demurrer because of that variance.
Judgment affirmed
All the Justices concur.
WELTNER, Justice, concurring.
I write only to suggest that, in my opinion, this case (and particularly Division
4) should not be considered as a proscription of all possible criminal sanctions
for failure to pay taxes.
The provisions of OCGA § 48-7-2(a)(1) make criminal the failure to pay income taxes-for
any reason. Thus, included within its gambit is the citizen trapped within the toils
of honest poverty, who, even through the exertion of the greatest of effort and
good faith is unable to pay the tax.
A criminal provision drawn in terms or a “willful failure’’ to
pay tax would be an entirely different matter. as it would catch the intentional
tax evader without at the same time ensnaring the hapless pauper.
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