Syllabus. Wytheville. RIXEY'S EXECUTORS V. COMMONWEALTH OF VIRGINIA. June 12, 1919. Absent, Sims and Burks, JJ. Rehearing Denied Richmond, November 26, 1919 1. TAXATION-Estate of Decedent-Situs for Taxation.-The situs for taxation of the property of a decedent held by his personal representative during the administration of the estate is at the last domicile of the testator or intestate, and there it is taxable, and not elsewhere. The fact that the executors or administrators resided elsewhere when the assessment was made does not affect the case. 2. TAXATION-Estate of Decedent-Executors also Trustees.-In the instant case, the petitioners, the executors of the estate of a decedent, contended that while it might be true that the property belonging to the estates of deceased persons should be listed and is taxable at the last residence of the deceased, the property here involved, which is in their hands, is held in trust for the benefit of others, the executors being trustees, and therefore it should be listed and taxed to the trustees where they reside, or it should be listed by and taxed to the trustees at the place of residence of the person for whose benefit the property is held. Held: That the petitioners held the property at the time the assessments in question were made, and still hold it, as executors of the will of the deceased, and the property is in their hands as the undistributed property of his estate. While it is true, as it is true of every fiduciary, that an executor occupies a position of trust, it is also true that an essential part of his duty is to distribute the estate of his testator, that until distributed he holds it as executor, and that the sureties on his bond as executor are responsible for any failure to make proper distribution thereof. Eight times in the will these executors were described as his "personal representatives" by the testator. 3. EXECUTORS AND ADMINISTRATORS—Executor as Trustee.-If an executor is directed to invest funds belonging to the estate which come into his hands as executor, no trust is superadded, Syllabus. but that is a part of his duties as executor. If an executor is also appointed as a trustee under a will, he cannot be considered as holding any part of the assets in his capacity as trustee until he has closed his accounts as executor with reference to this particular fund and has been charged with the fund as trustee. 4. TAXATION-Situs-Local and State Purposes.-If the proper situs for taxation of intangible property is a certain magisterial district, then it is liable for local as well as State taxation at that situs. 5. TAXATION-Situs-Intangible Personal Property-Undistributed Estate of Decedent.-The situs for taxation of intangible personal property is at the domicile of the owner, and in case of an undistributed estate held by the personal representatives, the property must be deemed to be the property of the decedent until it has been distributed to those who succeed him in the beneficial ownership. 6. TAXATION-Excessive assessments-Burden of Proof.—The presumption is in favor of the validity of tax assessments which are regularly made, and the burden is upon those who seek to show that valuations are excessive to prove that fact. 7. TAXATION-Uniformity-Absolute Equality not Necessary.—The difficulties of securing absolute equality in assessments are everywhere recognized, but no machinery has yet been. devised by which these difficulties may be fully overcome. It cannot be too distinctly borne in mind that any possible system of tax legislation must inevitably produce unequal and unjust results in individual cases; and, if inequality in result must defeat the general law, then taxation becomes impossible, and governments must fall back upon arbitrary exactions. But no such impracticable principle is recognized in revenue laws. While equality and justice are constantly to be aimed at, impossibilities are not demanded. Tax legislation must be practical. 8. TAXATION-Uniformity-Liberal Construction of Statutes.—If the courts had either the wisdom to devise or the power to bring about absolute equality in taxation, they should not hesitate to act. Until, however, they attain to that wisdom and are vested with that power, tax statutes must be liberally construed to produce the best attainable results, and the dream of absolute equality must remain unrealized. 9. TAXATION-Uniformity-Due Process of Law.—It is a systematic, intentional discrimination, by those administering the tax system of a State (whether as directed by statute or contrary to statute), against a person, by an assessment of the property of such person at a higher rate of valuation than that applied Syllabus. to the same kind of property of other persons whose property is taxed in the same jurisdiction, which is condemned and held to be a denial to the person first referred to of the due process of law and the equal protection of the law guaranteed to them by the Federal Constitution. 10. TAXATION—Uniformity-Due Process of Law.-Where there has been no discrimination between persons or classes of persons, but the property of the like kind of all persons in a gíven jurisdiction has been undervalued in its assessment for taxation contrary to law, for a correction to be made of such assessment of any individual property owner according to law, by an assessing officer, by a board of review, by a commissioner of court, by a court, or by any other legislatively authorized agency, means, or instrumentality, does not fall under the ban of the authorities, although it may be true that such correction may not be made as to all of the persons whose property has been thus under-assessed. If there be not a systematic, intentional discrimination between persons or classes of same kind of property in the making or in the correction of assessments, such action is not a denial of due process of law and the equal protection of the laws. 11. TAXATION-Duty of Owner of Property-Inequality. 12. The owner ship of taxable property imposes the duty of paying taxes thereon. This duty inheres as an essential incident to such ownership. For one who is clearly liable to taxation to seek relief therefrom upon the ground that there are others who are equally or partially delinquent is to assign a reason therefor which is manifestly insufficient, for there are also many others who have paid all that they owe, so that to relieve any of their just obligations neither enforces nor promotes that uniformity which is enjoined by law, but just the contrary thereof. To relieve those clearly liable is to increase the inequality and to make still worse that which is already bad. TAXATION Omitted Taxes Code of 1904, Section 508, as Amended by Acts 1916, Ch. 491-Retrospective Statute.-Code of 1904, section 508, as amended by Acts 1916, p. 827, provides that: "No municipal, county or district tax shall be levied or collected on any assessment of intangible personal property, money or incomes for taxes alleged to have been omitted from the assessments for the years prior to nineteen hundred and twelve." In the instant case an assessment had been made in 1914 for the year 1911, before the adoption of the amendment, and the question was whether the limitation thereby provided applies to such a previous assessment. Held: That it did. The legislature was adopting a statute of repose, and intended that after the act became effective no Syllabus. claim for omitted municipal, county, or district taxes should be enforced by levy or by any other means collected for such as were omitted for the years prior to 1912. The act was clearly intended to be retrospective to the extent indicated. 13. TAXATION-Penalties and Interest.-It is the duty of every taxpayer to report his property for assessment and to pay the tax thereon by December 1st following, in order to escape the prescribed penalties. The statute (section 603 of the Code of 1904) imposes the penalty, and the Supreme Court of Appeals has no power to relieve a delinquent taxpayer therefrom. The same principles apply as to the interest which the officers, by mandate of the statute, are required to collect. ON REHEARING. 14. TAXATION-Proceeding by Taxpayer to Correct Erroneous Assessment Assessment Against Taxpayer of Omitted TaxesFailure of Tax Officials to Perform Duty.-On a motion by a taxpayer to correct an erroneous assessment, the taxpayer renders himself liable in that proceeding to pay all taxes with which he is chargeable in that jurisdiction upon a correct assessment of his property, whether or not the officials charged with the duty of enforcing the tax statutes requiring proper returns performed their duty. 15. TAXATION-Failure of Officials-Taxpayer not Relieved.—Under section 174 of the Constitution of 1902, no dereliction of the examiners of records in failing to report the property, or of the commissioner of the revenue in failing to assess it for taxation, can relieve any taxpayer of his own duty to list and return his taxable property for taxation; nor can such concurring failures and omissions relieve any of the property from its just proportion of the tax burdens, which are intended to be equal and uniform. 16. TAXATION-Local Purposes-Intangible Property of Decedent.— For the purpose of taxation, a decedent or his executors must be deemed residents of the magisterial district of which the decedent was domiciled at his death within the meaning of the words "residents in the magisterial district" proposed to be taxed for district purposes, as used in Acts 1915, p. 119. 17. TAXATION-Penalties and Interest.-As penalties and interest are imposed by statute upon taxpayers who are in default, in order to insure the prompt payment of taxes which are necessary for the support of the government, the courts have no authority to relieve them therefrom. The citizen who desires to avoid paying such penalties and interest can pay the tax assessed promptly, and then institute the proceeding provided by statute for exoneration therefrom. If he establishes the Opinion. invalidity of the tax, or any part thereof, the state or local authorities are required to refund the amounts illegally exacted. If he declines to pay upon the ground of invalidity of the tax assessed, he must take the consequences, if his litigation results unfavorably to him, and one of these inevitable consequences is that he must pay penalties and interest upon. taxes lawfully due which have not been promptly paid. 18. TAXATION-Interest-Omitted Taxes.-Taxes which were regularly assessed for the years 1915, 1916 and 1917 upon intangible property are not omitted taxes, and there is no statute requiring interest to be paid thereon, and hence none can be collected. Code of 1904, sec. 636, relates only to interest on taxes on land returned delinquent. Error to a judgment of the Circuit Court of Culpeper County on a motion to correct an erroneous assessment. Judgment for the Commonwealth. Plaintiffs assign error. The opinion states the case. Amended and affirmed. John S. Barbour and J. G. Hiden, for the plaintiffs in error. John R. Saunders, Attorney General; J. D. Hank, Jr., assistant Attorney General; O. L. Shewmake and F. Briggs Richardson, for the Commonwealth. PRENTIS, J., delivered the opinion of the court. The petitioners, John S. Barbour and the Virginia Trust Company, of Richmond, executors of the last will and testament of John F. Rixey, deceased, complain of a judgment and order refusing to exonerate them from certain assessments made upon intangible property for State and local taxes for the years 1911 to 1917, inclusive. The testator died February 9, 1917, his will was admitted to probate in the Circuit Court of Culpeper county March 18, 1907, and John S. Barbour and "some incorporated trust or security |