stating that "[g]overnment budgets are prepared on an annual cash basis"
How later courts described this case
- stating that "[g]overnment budgets are prepared on an annual cash basis"
- construing "overpayment" for purposes of the Missouri Code to include "illegally collected taxes."
- “Governments' are entitled to presume that statutes are constitutional.”
- “In the absence of statutory 22 authority, taxes voluntarily, although erroneously paid, . . . cannot be refunded”
Written by the judges who cited it.
The opinion
WELLIVER, Justice,
concurring in part and dissenting in part.
I concur in part and dissent in part. I dissent from that part of the principal opinion which would deny Community Federal’s refund on the purported technicality of late filing.
Merger of savings and loan associations is controlled by § 369.084, RSMo 1986, which provides:
369.084. Merger, effect of. — When the merger or consolidation becomes effective:
(1) The several associations parties to the plan of merger or consolidation shall be a single association, which, in the case of a merger, shall be that association designated in the plan of merger as the surviving association, and in the case of a consolidation, shall be the new association provided for in the plan of consolidation;
(2) The separate existence of all associations parties to the plan of merger or consolidation, except the surviving or new association, shall cease;
(5) All property, real, personal and mixed, and all debts due on whatever account, and all other choses in action, and all and every other interest, of or belonging to or due to each of the associations so merged or consolidated shall be taken and deemed to be transferred to and vested in such single association without further act or deed; and the title to any real estate, or any interest therein, under the laws of this state vested in any of such associations shall not revert or be in any way impaired by reason of such merger or consolidation;
(6) The surviving or new association shall thenceforth be responsible and liable for all the liabilities and obligations of each of the associations so merged or consolidated; and any claim existing or action or proceeding pending by or *801 against any of the associations may be prosecuted to judgment as if the merger or consolidation had not taken place, or the surviving, or new association may be substituted in its place, and neither the rights of creditors nor any liens upon the property of any of the associations shall be impaired by the merger or consolidation; ...
(Emphasis added.)
Clearly, the statute authorizes that “any claim existing or action or proceeding pending by or against any of the associations may be prosecuted to judgment” separately and as if no merger had occurred, or, may be treated as a single claim with the surviving corporation “substituted in its place.” Inherent in the latter is the right of the surviving corporation to make the appeal based upon the last judgment rendered against one of the component parts of the surviving corporation. There is no prejudice to the state whether the claim be treated in separate parts or as a single claim of the surviving corporation, or both.
Community Federal, like the others, is entitled to the refund and the cause should be reversed as to all parties.