Succession Tax

I. Notion. Succession tax is a tax which heirs must pay to the treasury from an inheritance obtained.

II. Justice of the law. The law of succession tax, considering the character of the tax, is commonly held to be just; for no reason can be assigned why the State cannot claim for itself a part of goods acquired by inheritance just as it can a part of other goods. I have said considering the character of the tax, because many judge that, in many regions, the part to be yielded to the treasury is greater than is just; but I would respond that it matters little whether taxes are imposed on goods acquired by inheritance or on other goods, provided that the taxes taken together are not greater than is just.

III. Obligation of the law. The law seems mixed, or to oblige to the act, and this even if succession tax is counted among indirect taxes. For the reasons brought forward in n. 1054 hold; nor can contrary common estimation be opposed. For the aforesaid estimation does not so much hold the law to be merely penal as the part to be assigned to the treasury to be greater than is just.

Corollary I. He who, according to what was said in n. 1055, judges that he contributes sufficiently to the common good, even if he does not declare a part, can swear with a restriction that the declaration issued by him was without reticence or less complete designation, namely by understanding silently: insofar as the omitted things had to be declared in conscience. This also applies to a promissory oath of declaring the things which he will afterwards find not yet to have been declared, or not to have been declared rightly.

Corollary II. He who swore that he had declared all things, knowingly concealing a part that had to be declared in conscience, is guilty of perjury; but he is not held afterwards to declare the concealed part, because by force of the added promissory oath he is held only to declare those things which he will afterwards find not to have been declared, or not to have been declared rightly.

624. Taxes or tolls, in a broad and general sense, are called whatever citizens are bound to pay for relieving the common burdens of the republic; strictly, however, these two are distinguished. Taxes, namely, in the proper sense are monies which citizens must pay by civil law precisely for this end, that satisfaction may be made for the public expenses of the republic; a toll is rather money to be paid on account of the conveyance of merchandise, whether into another city or kingdom (droits de douane et de transit), or to another person (droits de succession et de mutation), or into another form or use (droits d'accise).

In modern law, however, another distinction is usually in use, namely, into direct and indirect taxes. Direct taxes are those which immediately and primarily affect persons on account of the goods which they possess, immovable or movable, or the arts or businesses which they exercise. But indirect taxes are reckoned to be those which immediately and primarily affect things and mediately persons, such as those which are collected on occasion of succession, conveyance, manufacture, etc.

625. The conditions required for the justice of a tax are numbered as three:

1. That it be imposed by legitimate and competent authority, national, provincial, municipal, as commutative justice prescribes;

2. For a just cause, namely, the utility or necessity of the republic, so that immediately or mediately it yields to the common good, proportionately to the necessity occurring, as legal justice demands; otherwise public authority does not have the right to dispose of the goods of subjects; hence under this heading there are per se excluded taxes imposed for useless expenses, or a fortiori for harmful ones;

3. With due proportion to the faculties of each one having been preserved, as distributive justice dictates: so that the burden does not exceed the faculties and is compensated by the advantage which comes to the people from the tax, and consequently so that those who are richer and perceive more of the benefits of civil administration bear greater burdens. For the State does not have the right to dispose of the goods of subjects except in this way.

1. In Belgium, for the various earlier direct taxes there was substituted a general tax upon income (law of October 29, 1919, arts. 1, 7, and 90).

Hence they sin not only against legal or distributive justice, but also against commutative justice:

a) Those who knowingly impose taxes (legislators, ministers, the king sanctioning them) without probable necessity or utility, because they unjustly deprive citizens;

b) Those who squander public monies without utility, with danger of burdening the peoples in the future;

c) Those who divide burdens among subjects without proportion to their faculties, and exceed these.

626. Thesis I. Taxes de iure and per se oblige in conscience, at least after the quota part has been legitimately determined according to justice.

It is explained. It is said: a) de iure and per se, insofar as the legislator has the power of obliging subjects in conscience, and is judged to intend this unless the contrary is clear from the circumstances. For legislators can also establish a merely penal law and oblige under the penalty alone; hence, if from the circumstances it is evident that such was the mind of the legislator, or that the law is understood by the greater part of the people as merely penal, and the legislator does not contradict, by accident the law does not bind in conscience except to the penalty;

b) At least after the quota part has been legitimately determined: for in present-day law the law does not oblige subjects, unless after legitimate authority has defined the quota to be paid and imposed it upon the citizen; for then the general obligation of paying taxes passes into a strict obligation, which can be sought by civil action. The determination of the quota to be paid is usually made by taxation by officials; but that it may be made more easily, sometimes a declaration to be made by citizens is prescribed by public power; in which case, even if there is an obligation of conscience of declaring, nevertheless, before the quota has definitively been imposed, there is not yet an obligation of paying, especially from commutative justice;

c) According to justice: for insofar as taxes are not unjust, so far they per se oblige.

It is proved: 1. From the Scriptures: a) implicitly, from the example and words of Christ, who commanded Peter to pay the tax (Mt. XVII, 23-26), and, being asked by the Pharisees and Herodians whether it was lawful to give tribute to Caesar, answered: "Render therefore the things that are Caesar's to Caesar, and the things that are God's to God" (Mt. XXII, 21); b) explicitly, from the doctrine of the Apostle Paul, Rom. XIII, 5-7: to rulers "be subject of necessity, not only because of wrath, but also because of conscience. For therefore also you pay tribute: for they are the ministers of God, serving unto this very thing. Render therefore to all their dues: to whom tribute, tribute: to whom toll, toll." Hence taxes and tolls must be paid in conscience, because they are ministers of God.

2. From the common doctrine of theologians of all times.

By reason: Citizens are bound in conscience to furnish those things which are necessary for administering and protecting society. But society generally cannot be administered and preserved without expenses necessary for preserving good order, protecting the fatherland against enemies, and promoting the common good; and these expenses cannot be paid unless taxes are imposed. Therefore citizens are bound to pay them in conscience; but if they could not be held in conscience, the end intended and necessary to the common good would not easily be obtained.

627. Thesis II. Even de facto, in present-day times and in many regions, taxes, at least direct taxes, oblige in conscience. We say: in many regions, because we would not dare to pronounce a firm judgment for England and English-speaking America.

Some have attempted to deny the thesis or call it into doubt, saying:

a) Present-day legislators care nothing about obligation in conscience;

b) The common persuasion of the people is inclined to considering tax laws as merely penal, whence also many of timid conscience defraud taxes;

c) Given an obligation of conscience, timid men would be in a much worse condition than the impious who do not care about such an obligation.

But, says Prummer, "everyone easily understands that these reasons are not convincing." For the response is:

To the first, that a true obligation may be present, it suffices that the legislator truly intend to impose the law and wish to command: for by that very fact an obligation of conscience naturally follows, and he implicitly intends it; otherwise almost no civil law could now oblige in conscience (I, n. 284).

To the second, the persuasion of the people rather regards the prior declaration to be made by citizens for certain taxes, but not the payment itself of taxes already defined, since citizens rarely are able to evade payment in such a case; moreover, in present-day law the estimation and custom of the people obtains no power of authentically interpreting or abrogating laws.

1. Thus Angelus Carletus (d. 1495), against whom Sylvester Prierias, O.P. (d. 1523) vehemently fought. In more recent time Biederlack, Crolly, Genicot-Salsmans, Frassinetti, Bucceroni favor this opinion; Vermeersch inclines to it; St. Alphonsus does not dare to call it probable.

2. Yet this is not universally true, nor in all regions.

To the third: it proves too much, because, if it had force, it could almost always be applied, and there would now be no obligation of human law in conscience.

The aforesaid opinion, therefore, is neither solidly nor sufficiently probable, if the reasons adduced are considered, and a fortiori if the opposing reasons are considered.

It is proved: 1. From the intention of the legislator and the end of the law: the legislator is judged to oblige in conscience when the law immediately contributes to the common good and is very necessary for the public good, such as a law imposing taxes is: for then he is presumed to oblige in the more efficacious manner, insofar as he can.

2. From the penalties and sanctions of the law: the obligation of paying direct taxes already defined is usually urged not only under penalty of a fine, but also by coercive penalties, for example, prison, indeed also by civil action, so also that sometimes it is a privileged debt fortified by legal mortgage: then the fiscal laws themselves grant the State a strict personal right, even before other debts, of pursuing payment from the goods of citizens by coercive force (for example, by compulsory sale), and indeed without judicial sentence, because from the law itself immediately the title is executory in the same degree as a judicial sentence.

Thus also in Belgium: formerly the law of August 22, 1822, now the law succeeding it, of October 29, 1919, arts. 70-73. The same is valid concerning duties imposed on occasion of succession (law of December 27, 1817, art. 3). But if sometimes recourse is given to a tribunal, either it is against the mode of proceeding alone, or for fines to be imposed besides upon defrauders, but not for founding the right of the State and the obligation of citizens, which the judge only recognizes.¹

¹ Nor does the objection of Fr. Vermeersch have force: sometimes someone has a civil action before a judge, and yet does not have a strict right, for example, to some reparation to be made to him (on account of damage inflicted in goods of soul or body or external goods), before the sentence of a judge has intervened. We concede this concerning those cases in which the sentence itself of the judge is the immediate title of the said right. But the public treasury (the fisc) has the right immediately from the law itself and independently of the intervention of a judge. Thus Kiselstein, in Revue Eccl. de Liege, March 1922. The whole article deserves to be read.

3. From the very words of the law. Even the law of taxes often employs imperative words, which ordinarily are accustomed to found the presumption of obligation.

Thus also the new Belgian tax law (arts. 11, 20, 21, 28, 32, 38, 70); moreover, in the discussions preceding the acceptance of the law, the strict natural office by which citizens are bound to pay taxes was mentioned several times.²

² Ann. Parl., October 10, 1919, p. 1985.

4. Finally there is added that a merely penal law, in so great a universality of all taxes, would necessarily open the way to innumerable frauds, lies, and perjuries, from which inequality and injustice would prevail with great detriment to the whole of society and of morals.

Hence tax laws, provided they are just and are applied in practice according to the rules of justice, oblige in conscience, from justice and obedience, unless the contrary appears from special circumstances. But the contrary does not appear except probably a) for laws merely prohibiting certain merchandise to be imported (droits de douane), unless it concerns merchandise prohibited because dangerous to public security: for grave fines and the multitude of watchful officials seem to indicate that nothing is left to the consciences of subjects. Likewise b) for taxes imposed on occasion of the manufacture or cultivation of certain things (droits d'accises ou de culture). Likewise c) for certain laws in postal matters, for example, that monies not be inserted in ordinary letters, or letters be inserted among other things to be conveyed; and similar things which seem merely to be referred to external order and can be assimilated to laws about preserving public order, which are merely penal (lois de police).

628. There is a dispute concerning the nature of the obligation, and concerning its proximate foundation, and concerning the virtue by whose force it binds. On this there are three opinions:

The first is of those who hold the laws to be merely penal, which oblige only to the penalty, and then only from obedience and legal justice. This we have already refuted;

The second holds that the obligation arises from commutative justice, so that for those defrauding there is an obligation of restoring. Thus St. Antoninus, the Roman Catechism, Billuart, and many others, so that St. Alphonsus calls the opinion most common and more probable. The principal reason is the implicit contract which intervenes between the prince and the people. The prince promises to procure the common good; citizens promise to pay the taxes necessary for sustenance and for taking care of the common affair.³

³ There is a manifold way of defending this opinion: 1. the right of occupying taxes by force of a pact or implicit contract, because social life is impossible without goods; 2. the contract is one of insurance, and the tax is the premium of insurance: thus Thiers and Mirabeau; 3. the contract is an exchange of offices, and the tax is the price by which utilities are bought, a recompense for an emolument received: thus Hugo Grotius, Bastiat, Ad. Smith; 4. the tax is a real burden in goods established for cooperation: thus Genouillac, Monier, De Broglie, Yves Guyot. But the State is not a society of monies but of persons; otherwise, how in that case could indirect taxes be justified? Cf. Janssen, Le fondement philosophique du devoir fiscal, in Eph. Theol. Lov., July 1925; and De Zedenleer en het belastingswezen.