« PreviousContinue »
1. Registry tax:- This tax figures in the budget of 1862 for $2,660,000. It is one of the most important sources of revenue, and the legislation concerning it is very complicated. Some general observations are therefore necessary for a clear understanding of the subject. In ordinary parlanoe, registry (enregistrement) is the lascribing upon a register any act. There are many acts for which this registry is necessary in order to give them date, or as evidence of changes in property which are made by means of such acts. There has, therefore, been instituted a public registry for acts, the recording of which might be useful to the public in general, and in the occasion of such record certain fces are levied. These fecs were in the first place the compensation for a service rendered, but became later a regular tax. The levying of certain taxes upon the registry of acts is a very ancient practice, under various names. At the time of the French revolution of 1789, the registry taxes of divers natures which were levied were so numerous and different, owing to the federal regime under which they had grown up, that the court of aides taxes which was charged with all fiscal matters, declared in 1775 that he who wished to pay could never know what he owed, nor he who received what was due. The national assembly abolished at one blow all these taxes by the decree of 5 and 19 December, 1790, and established registry taxes of a uniform character. This decree is the starting point for the legislation of the present time, and forms the basis for it, which is little more than the same system decreed in 1790 with different combinations. After many modifications, the result of experience, this law was definitively replaced hy that of 22 Frimaire, an 7, which limited and modified all anterior laws, and forms a system which has continued to this time, saving some modifications, to be mentioned in their proper place.
Nature, extent, and proportion of the registry taz.—This tax constituted at the same time a tax and a compensation. It is on this account that the levying of the tax has always appeared very advantageous and has never given rise to serious complaints. It has been thought, very properly, that as registry was useful to the proprietor, it would not be too onerous to make him pay, under this head, both a compensation and a tax to the State. This has been always recognized from the outset, especially in the preamble of the law of 9 Pluviose,
The registry taxes are divided into two great categories; the taxes of the one are fired, that is, they neither augment nor diminish in amount for the same kind of acts, whatever the intrinsic value of these acts; those of the other category are proportional, that is, they vary in proportion to the value of these acts, or the changes of property upon which they are to be levied.-(Article 2 of the law of 19 Frimaire, an 7.
The fixed tax applies to acts, whether civil, judiciary, or extra judiciary, which contain neither obligation, liberation, nor condemnation, collocation or liquidation of moneys or values, nor transmission of property by entail or usufruct of real or personal property.- (Art. 3, same law.)
The proportional tax, on the contrary, is established for the cases excepted by the preceding article; it is based upon values.-(Art. 4 of same law.)
In other words, the fixed tax is levied upon the act itself, without respect to the value of the act, while the proportional tax is based upon the values or amounts which form the object of the act.
It results from this classification of the law that all acts whatsoever are subjected to a registry tax, either fixed or proportional, saving some exceptions designated by the law itself.
Fixed taxes. There were at the outset in the law of 22 Frimaire, an 7, and 27 Ventose, an 9, laid at from five cents to five dollars.
It would be too long to give the entire nomenclature of the papers to which
the fixed tax applies. Suffice it to say, that by the 2d and 11th articles of the law of 31 May, 1824, and the law of December, 1832, these taxes are now, with three unimportant exceptions, at 84 cents, 34 cents, 68 cents, $1 02, $1 69, $3 40, $5 09, and $8 48 cents, without including the 30 additional centimes or per cent., decreed and maintained each year by the law of the budget.
Proportionate tuxes. These taxes were established by the law of 22 Frimaire, an 7, and have been but slightly modified. They vary from 25 centimes (5 cents) in the 100 francs, ($20,) which is the lowest tax, to $1 in $20, or 5 per cent., which is the highest rate, not including the additional centimes which were fixed by the law of 29 December, 1842, at 30, and have since been maintained at that figure. The intermediate taxes are for each 100 francs or 20 dollars, 10 cents, 20 cents, 25 cents, 40 cents, 50 cents, and 80 cents.
By the terms of article 5 of the law of 22 Frimaire, an 7, there are no fractions of centimes (2 mills) in the payment of the proportional tax; when a fraction of a sum does not produce less than one centime of tax, the centime is nevertheless levied,
Secondly. The lovying of the proportional tax is not upon the sum mentioned in the act, but according to a scale established by article 2 of the law of 27 Ventose, an 9, from 20 francs ($4) to 20 francs, inclusive, and without fraction of any kind.
Again, the minimum of the tax, in so far as proportional taxes are concerned, is as for fixed taxes, 8. cents, (43 centimes.)
It is impossible to give here the different acts upon which the proportional tax is levied ; they are mentioned in detail in article 69 of the law of 22 Frimaire, an 7, or in the modifications which it has undergone.
Registry of administrative acts.-A fundamental principle is, that administrative acts subject to registry are subject to the same taxes as those of indivi. duals, saving exceptions established by law. Acts enregistered in debit. This consists in enregistering, but on credit, so that the tax is only paid later, when it is known from whom it is due, and if it is due.
According to article 70 of the law of 22 Frimaire, an 7, all acts and re. ports (proces verbau) of police in connexion with "repressive" police shall be registered on credit; to be collected after sentence, at the expense of the person condemned. The royal orders of 19 January, 1815, has substituted for the article 70, cited above, another mode which amounts to the same thing, in fact. The provisions of this order do not, however, concern summonses of witnesses made on the demand of the accused. Correctional or simple police matters are not to be confounded with those touching the collection of imposts and revenues of the state, which, although within the jurisdiction of the correctional tribunals, are, nevertheless, neither originated nor are prosecuted on the initiative of officers of justice, but by a branch of administration in its own interest. In such cases the registry is obligatory, and cannot be made on credit. There are several other cases where the registry is made on credit
, but they are of secondary importance and their enumeration would be too long.
Acts whose registry is gratuitous.-Article 70 of the law of 22 Frimaire, an 7, the laws of 8 March, 1810, and of 17 April, 1835, and many other laws, orders, or decisions, designato cases where the registry must be gratuitous. These are especially:
Acqusitions and exchanges made by the state, the division of property between it and individuals, and all other acts made touching euch subjects.
Summonses, &c., having for object the collection of taxes and all sums whatsoever due to the state, even local taxes, when a tax is of $5 and under, or taxes and dues not exceeding a total of $5.
Acts, judgments, and orders touching expropriation on account of public utilityand in favor of the state, province, or town, and of individuals, under certain restrictions,
Acts being bonds or securities of public officers connected with the treasury, and for the faithful performance of their trusts; the changes in rents or consols, due by towns, and not inscribed upon the “great book” of the public debt of Belgium, when they have not been paid at the epochs specified during the last three years, which fact must be proved.
“ Acts of notoriety," judgment of homologation, (official judgment,) certified copies and papers from registers, and documents necessary to contract marriage to a person whose indigence is satisfactorily shown, &c., &c., &c.
Acts which are exempted from registry. The law of 22 Frimaire, an 7, and the subsequent laws and divisions, mention acts exempted from the formality of registry. No exemptions are permitted other than those formally indicated, nor can any exemption be permitted by analogy or by extension.
The following are more particularly exempted :
The acts of public administrations not comprised in articles 68 and 69 of the law of the 22 Frimaire, an 7.
Acts giving promise of fidelity to the constitution by different public functionaries, &c.
Oaths taken, even on taking office, of ministers, councellors of courts, judges, attorney general, and other magistrates, of justices, governors, commissaries of dietricts, deputies of the provincial bodies, burgomasters, echevins, (aldermen,) commissaries of police, officers of the army and of the militia, (garde civigne,) professors of universities, and members of the jury of examination, and, finally, officers of police at railroad stations.
Deliberations touching nomination by the villages for rural police, (gardes champetres.)
The specifications drawn up by the engineer of roads and bridges for proposals for works upon the public roads.
Reports which are known in the marine under the name of potils rapports. Sales of sea fish publicly made in the markets.
Copies of royal orders and deliberations of consultative bodies authorizing the administration of villages, hospitals, and other public establishments to sell their property, or to alienate or hypothecate it. * Inscriptions upon the great book of the public debt, their transfer and mutations, (changes,) receipts for interest paid upon them, and all obligations of the public debt inscribed or to be inscribed definitely.
Inscriptions, orders, and drafts upon the national treasury or its branches, their indorsements or receipts.
Receipts for taxes, dues, debts, and revenue paid to the state; those for local charges; those of functionaries and employers' salaries by the treasury, in so far as they concern their salaries and emoluments.
Orders for discharge or reduction, abatement, or remission of taxes, the receipts relative thereto, lists, copies, &c., of the same character.
Receipts delivered to the collector and receiver of the public revenues and of local taxes, and the accounts of receipts or of public administration.
Certificates of birth, interment, and marriage received by civil officers, and certified copies of the same made and delivered.
All acts, reports, and judgments concerning general police or that of public safety, &c. Cedules
, memorandums for appeal to the bureau of conciliation, except the tax for summons.
The legalizations of signatures of public officers, the affirmations to reports of employés, guards, and agents salaried by the state, made in the exercise of their functions.
Engagements, enlistments, &c., in the army or navy, and all other acts of either of those departments uot included in the foregoing articles.
Passports delivered by the public authorities; bills of exchange drawn from one place on another, those coming from foreign countries; indorsements and receipts of the same, and bills or notes to order, or other negociable paper; cedules (memorandums) to cite persons either before the justice of peace, or the bureau of conciliation.
Acts, other than notarial, having solely for object the liquidation of the public debt, and in so far as they serve for the operations of liquidation, as well as the acts of liquidating administrations, and agents relative to the same; acts of recourse in copation (appeal) in criminal matters; the deliberations of the chambers of notaries, and the documents relative to the same.
Reports of sales made by the monts de pieté and public pawnbrokers' establishments, and all acts relative thereto; acts and reports relative to criminal procedures, and those of correctional, or in simple police,
Certificates of life, or of deliverance to debtors on the rentes, or pensioners of the State ; receipts of furnishers; workmen; masters of schools, and others of the same nature, produced by an accounting officer as vouchers.
Certificates to be produced in order to be exempted from service in the militia ; expenses given in the current accounts of merchants; bills, receipts, obligations, certificates, or bonds resulting from loans opened for account of foreign powers or foreigners.
All claims, acts and powers in appeal, in electoral matters.
Acts, judgments and other documents relative to prosecutions suits before the council of prudhommes (council of masters and workmen) solely.
2. Next in order, in this category, comes the tax on mortgages, (“Droit sur hypotheques.")
The amount of tax collected under this head, according to the budget for this year is, including the 25 per cent. additional, $485,000.
Mortgages, or hypotheques, are liens upon real estate in security for the payment of obligations, or the guarantee for the due payment of a service, assuring the creditor, in whose favor they are, a preference upon the price of the property:-(See Art. 2092 to 2095, and 2114 of the Code Civil, and the law of 16 December, 1851, touching the revision of the mortgage system.) As a general rule, these privileges or mortgages do not have effect, save in so far as they are made public.—(Art. 2106 to 7113, and 2134 to 2145 of Code Civil, law of 15 September, 1807; of 15 May, 1846, and of 16 December, 1851.)
From this principle, that they have effect only in so far as they are made public, is derived what is called the conservation (registration) of mortgages, and to this end, a public officer, called “conservator (registrar) of mortgages ” is employed, charged with the duty of inscribing upon a special register mortgages, preferency, or liens; to transcribe upon another register acts of transmission of property; to erase, when there is occasion, existing "inscriptions,” (entries;) to deliver copies of acts inscribed upon the registers, and of eneumbrances upon properties; and finally, to give certificates in case of property being unencumbered, that no encumberance exists.
These divers acts of the conservator (registrar) of mortgages give rise to certain fees which are levied as they are performed in favor of the treasury and of the conservator. The fees in favor of the treasury are proportionate; those which the law allows to the conservator are fixed, and are the emoluments of his office paid to him by the parties interested.
The establishment of this tax dates back to the origin of mortgages, which is very ancient. The legislation touching this subject has often varied. The laws which now form the bases of the tax are still those of 9 and 21 Ventose, an 7.
Article 19 of this law provides that, in conformity to the law of Vendemaire, an 6, a tax shall be levied upon the inscription (entry) of mortgages, and upon the transcription (registry) of acts containing sales or transfer of real estate, and
after this the law has one chapter devoted to the tax on inscription, and another to the tax on transcription.
Tax on Inscription, (recording of mortgages.)—This tax is laid in article 20 of the law of 21 Ventose, an 7, at one-tenth per cent. upon the capital of the debts due posterior to the promulgation of the law of 11 Brumaire preceding.
This tax, at first modified by the law of 6 Messidor, an 7, was re-established by the law of 3d January, 1824, the first article of which says: “ The tax on registry of mortgages, and the renewal of the same, is fixed for all debts, whatever their date, at one florin (forty cents) for one thousand. Horins of the amount of the debt.” To this is to be added, however, the twenty-five per cent. or centimes additional, provided for by the law of the budget, The law provides that the proportional fees or tax of registry of greffe, (clerks,) and of mortgages, shall be from twenty florins (four dollars) to twenty francs, inclusively, and without fractions.
The tax is to be paid upon the amount of every mortgage debt whose inscription is required in order to secure its preservation, excepting in the cases provided for by law. Article 21 of the law 21 Ventose, an 7, provides that there shall be paid but a single tax on inscription (entry) for each debt, whatever may be the number of creditors or debtors. Article 22 of the same law provides that if there is record of the same mortgage in several bureaus the whole tax shall be collected in the first bureau, and in the other bureaus for each of the other inscriptions, (entries.) No other fee shall be levied than for the service of the clerk.
By the law of 6 Messidor, an 7, inscriptions of an indefinite character are not subjected to the tax.
There are still other provisions touching the tax on mortgages, but they are too extended for mention here.
Tax on transcription or registry of deeds or acts of sale, transfer, or change in real estate. This tax, in the first place, was fixed by the law of 9 Vendemaire, an 6, at one and one-half per cent, upon the amount of the transaction, and was maintained by the law of 21 Ventose, an 7, article 25, which is as follows:
“The tax upon the transcription of acts bearing changes in real estate shall be one and one-half per cent. of the amount of the same, in accordance with the settlement at the registry."
In other words, the sum which has served as a basis for levying the tax for inscription serves equally as a basis for collecting the tax for transcription. The provisions of article 25 have been considerably modified in other respects. In the first place, under the law of 21 Ventose, an 7, the transcription of sales or trinsfers of real estate was optional; the law of 3 January, 1824, has made it obligatory for all changes in real property. This law was perfected by that of 18 December, 1851, article 30. Article 2 of the law of 3 January, 1824, had reduced the tax on transcriptions, recording deeds, &c., one-half per cent., but by a law of 30 March, 1841, it was raised to one per cent., independently of the additional centimes which the budget fixes now at twenty-five per cent. The tax on transcription, like that on inscription, is upon sums of four dollars to four dollars, inclusively, without fractions.
The law has still some further provisions, which are of but secondary importance, relative to the tax on transcriptions. It designates also those few transcriptions which are gratuitous, save payment of the stamp and the clerk's fees, as well as some few upon which, exceptionally, a fixed tax is levied ; finally, it fixes the fees to be paid the conservator for his services.
3. Greffe, (clerk's office.)-The product of this tax according to the budget of 1862, is $50,000.
By greffe is understood a public office where are preserved for reference, if desired, the minutes, registers, and other acts of a jurisdiction.