In re the Appeal of Pilot Freight Carriers, Inc. , 28 N.C. App. 400 ( 1976 )

MARTIN, Judge.

CITY appeal.

City appellant contends that the court erred in holding that Pilot did not have to pay taxes for 1965-1966. It does not contest the conclusion that G.S. 105-312, the “discovery” statute, extends only back to 1967, but relies upon the old 105-332 (See 1965 Replacement Volume 2D), which was repealed effective 1 July 1971. This statute provided that any property which was “validly listed for taxation in any county, municipal corporation or taxing district shall be thereby also validly listed for taxation by any county, municipal corporation or taxing district in which it has a taxable situs.”

When Pilot listed its interstate equipment for county tax purposes in 1965 and 1966, the property had a tax situs within the City. At that time G.S. 105-332 was in full force and effect.

Upon passage of the Machinery Act, effective 1 July 1971, G.S. 105-332 was repealed, with no saving clause, and new G.S. 105-395 provides:

“ . . . Unless otherwise specifically provided herein, all other provisions of this Machinery Act (being Subchapter 11 of Chapter 105 of the General Statutes) shall become effective July 1, 1971, and shall apply to all taxes due and uncollected as of that date as well as to those that shall become due thereafter.” (Emphasis supplied.)

Thus, the intention of the Legislature to give the New Machinery Act of 1971 retroactive effect is expressly declared. Assuming arguendo, that the 1965-66 taxes were due the City pursuant to G.S. 105-332, the repeal of that statute by the enactment of the New Machinery Act of 1971, without a saving clause, put an end to the right of the City to collect the tax.

The decision of the State Property Tax Commission that Pilot did not have to pay to the City taxes on its interstate equipment for the years 1965 and 1966 is based upon appropriate findings of fact supported by material and substantial evidence and is in accord with law. The superior court correctly sustained the decision of the Commission.

PILOT appeal.

Pilot appellant contends the Board of Aldermen were relying upon the old G.S. 105-332 (Repealed 1971) in assessing back taxes and that the City cannot now rely upon the “discovery” statute. The “discovery” statute (the old G.S. 105-331 and the present G.S. 105-312) authorizes the City to “discover” unlisted property and to tax it for the “current year” and for five previous years. Thus, the City could discover any property not listed for the current and five prior years. The only year which could conceivably be the current year is 1972. That is the first time any affirmative action of any kind was taken against Pilot. A discovery is made when the property is listed by the tax supervisor. With 1972 as the current year, the earliest year for which the City could discover unlisted property was 1967.

Conceding the City had the power to assess taxes for 1967-1968 under G.S. 105-312, Pilot argues that the City failed to follow the procedures for notice as outlined in G.S. 105-312 (d). It was stipulated that Pilot was notified of the proposed action by the Board of Aldermen and that Pilot’s attorney appeared and argued before the 18 December 1972 resolution was adopted. Such participation ordinarily waives any defects in notice. See Collins v. Highway Comm., 237 N.C. 277, 74 S.E. 2d 709 (1953). Further, G.S. 105-394 provides that immaterial irregularities in notice do not invalidate taxes imposed.

The decision of the State Property Tax Commission holding that Pilot had to pay taxes on its interstate equipment to the City for the years 1967 and 1968 is based upon appropriate findings of fact supported by material and substantial evidence and is in accord with law. The superior court correctly sustained the decision of the Commission.

The result is:

On City appellant’s appeal the judgment of the superior court is

Affirmed.

On Pilot appellant’s appeal the judgment of the superior court is

Affirmed.

Judges Morris and Parker concur.