TCA § 20-12-102 — Litigation tax

Litigation taxes shall be payable as required by §§ 67-4-602 — 67-4-606 . A successful plaintiff in any civil action shall be reimbursed by the defendant for any litigation tax incurred, in the same manner as are costs. Code 1958, § 551; Shan., § 706; Code 1932, § 1257; Acts 1961, ch. 310, § 1; T.C.A. (orig. ed.), § 20-1602; Acts 1982, ch. 925, § 1. Cross-References. Attorney generals' retirement tax, § 8-622 (Vol. 3 Appendix). Tax not imposed on actions to enforce tax liens, § 67-5-2410 . NOTES TO DECISIONS 1. Constitutionality. 2. Cases Covered by Law. 3. Accrual Date of Tax. 4. Successful Party — Liability. 5. “Unsuccessful Party” — Meaning. 7. Partial Payment of Costs — Application. 8. State Tax — Liability of County. 9. Enforcement of Collection. 10. —Working Out Collection. 1. Constitutionality. The tax on litigation to be paid by the unsuccessful party is constitutional. Harrison, Pepper & Co. v. Willis, 54 Tenn. 35, 1871 Tenn. LEXIS 413, 19 Am. Rep. 604 (1871). 2. Cases Covered by Law. A motion against a sheriff for an insufficient return of an execution is, in substance and legal effect, a suit or action, and therefore subject to the tax on litigation. But a motion of this character made for the first time in the supreme court as an incident to a pending appeal is held not subject to the tax on litigation, for the reason given that it is only a means of enforcing a judgment already rendered. Motion Against Curry, 59 Tenn. 51, 1873 Tenn. LEXIS 26 (1873); McIntosh v. Paul, 74 Tenn. 45, 1880 Tenn. LEXIS 209 (1880). See also State v. Allison, 32 Tenn. 373, 1852 Tenn. LEXIS 85 (1852). A motion made to recover from a clerk, fees received by him for enrollments not made, is a suit subject to the tax on litigation. Woodward v. Alston, 59 Tenn. 581, 1873 Tenn. LEXIS 118 (1873). This applies to criminal as well as civil cases, and county courts could assess the tax in both cases for the counties. State v. Howran, 55 Tenn. 824, 1875 Tenn. LEXIS 7 (1875). Such tax is not costs in a misdemeanor case in such sense that the convict may be imprisoned for it, upon his failure to pay or secure it, though it is declared by statute a part of the costs. Ex parte Griffin, 88 Tenn. 547, 13 S.W. 75, 1889 Tenn. LEXIS 75 (1890). 3. Accrual Date of Tax. Tax on litigation accrues when the suit is commenced. Elliston v. Winstead, 78 Tenn. 472, 1882 Tenn. LEXIS 207 (1882). 4. Successful Party — Liability. The state is not entitled to recover as costs, against the successful party, the tax imposed upon the unsuccessful party, in case of the latter's insolvency. State v. Nance, 69 Tenn. 644, 1878 Tenn. LEXIS 148 (1878). A person authorized to collect tax as costs of suit is liable to the state for the tax collected by him from the successful party, if not paid under protest, unless he shows that he has not repaid it to the party, or has been sued for it by him, or notified by him not to pay it over. Galbraith v. State, 78 Tenn. 568, 1882 Tenn. LEXIS 225 (1882). 5. “Unsuccessful Party” — Meaning. The words “unsuccessful party” as used in this section mean the party adjudged to pay costs. State v. Cole, 74 Tenn. 492, 1880 Tenn. LEXIS 279 (1880). Where a suit is compromised before the return day of the writ, and dismissed, the defendant agreeing to pay the costs, he is the unsuccessful party, and is liable for the tax. Elliston v. Winstead, 78 Tenn. 472, 1882 Tenn. LEXIS 207 (1882). 6. —Surety of Unsuccessful Party — Liability. In a criminal case, a surety on a prosecution or appeal bond, against whom, with his principal as the unsuccessful party, the costs of the cause are adjudged, is not liable for the tax on litigation. State Tax Cases, 80 Tenn. 744, 1884 Tenn. LEXIS 159 (1884); Johnson v. State, 85 Tenn. 325, 2 S.W. 802, 1886 Tenn. LEXIS 48 (1886). 7. Partial Payment of Costs — Application. If the clerk receives from the unsuccessful party a sum insufficient to pay all the costs, he should pay the state tax first, unless the party himself should make an application of the payment to a specific part of the costs. State v. Stanley, 71 Tenn. 524, 1879 Tenn. LEXIS 110 (1879). 8. State Tax — Liability of County. Where the county leases the workhouse prisoners to others, and derives a revenue from their labor, it is liable for the state tax in such cases. State v. Sibley, 72 Tenn. 738, 1880 Tenn. LEXIS 86 (1880); State v. Davidson County, 96 Tenn. 178, 33 S.W. 924, 1895 Tenn. LEXIS 23 (1896). A county is not liable to the state where the misdemeanant, upon payment of the fine and costs to the clerk of the circuit or criminal court, is discharged without payment of the state tax on litigation, and such clerk has paid the fine into the county treasury, for the county cannot be held responsible for the state tax upon the ground that it has received the fine to which it was entitled. State v. Davidson County, 96 Tenn. 178, 33 S.W. 924, 1895 Tenn. LEXIS 23 (1896). 9. Enforcement of Collection. The tax upon cases tried in the municipal courts is to be paid by the parties convicted, and is not a tax imposed upon the city, or the exercise of one of its agencies or powers, nor is it costs in cases tried before these courts; and the convict cannot be imprisoned to secure the payment of this tax. The city is not liable for this tax unless it is collected. Eastman v. Nashville, 81 Tenn. 717, 1884 Tenn. LEXIS 91 (1884). 10. —Working Out Collection. Under Acts 1919, ch. 134, which required litigation taxes to be included in the bill of costs, and which prohibited their remission, a misdemeanant cannot be required to work out state and county litigation taxes, but a motion to strike them from the bill of costs may properly be overruled, the remedies being by habeas corpus, if any effort to require him to work out such items should be made. McKee v. State, 142 Tenn. 173, 218 S.W. 233, 1919 Tenn. LEXIS 46 (1920). The litigation tax is not a part of the fine or costs and a defendant in a criminal case cannot be made to work out such litigation taxes in jail. State ex rel. Dillehay v. White, 217 Tenn. 524, 398 S.W.2d 737, 1966 Tenn. LEXIS 656 (1966).