Gee Coal Co. v. Dep't of Fin.

• Citation: 361 Ill. 293,197 N.E. 871
• Decision Date: 09 October 1935
• Docket Number: No. 22968.,22968.
• Parties: GEE COAL CO. v. DEPARTMENT OF FINANCE.
• Court: Supreme Court of Illinois

361 Ill. 293

197 N.E. 871

GEE COAL CO.

v.DEPARTMENT OF FINANCE.

No. 22968.

Supreme Court of Illinois.

June 14, 1935.

Rehearing Denied Oct. 9, 1935.

Certiorari proceeding by the Gee Coal Company against the Department of Finance of Illinois to review a determination of the Department of Finance fixing a deficiency retailer's occupation tax. From an order sustaining a motion by the Gee Coal Company to quash the record and proceedings had before the Department of Finance, the Department of Finance appeals.

Order reversed, and cause remanded, with directions.

Appeal from Superior Court, Cook County; James J. Kelly, judge.

Otto Kerner, Atty. Gen. (Montgomery S. Winning, of Springfield, and William C. Clausen, of Chicago, of counsel), for appellant.

Rubenstein, Haggenjos & Monarch, of Chicago (N. W. Rubenstein and Alexander J. Resa, both of Chicago, of counsel) for appellee.

FARTHING, Justice.

The state department of finance appealed to this court from a final order entered by the superior court Cook county sustaining a motion by the Gee Coal Company, appellee, to quash the record and proceedings had before the department, wherein it found, after a hearing, that appellee was liable to the state for a tax under the Retailers' Occupation Tax Act. The amount of liability fixed ($135.41) represented a deficiency for the months of November and December, 1933. The superior court by the same order overruled a motion by appellant to quash appellee's writ of certiorari.

Appellee conducts a retail coal business in Chicago. It buys coal f. o. b. the mines and ships it by rail to its yard in Chicago. It pays the mining company for the coal and the railroads their freight charges. It then sells coal to consumers. Before the Retailers' Occupation Tax Act (Smith-Hurd Ann. St. c. 120, § 440 et seq.) was passed, and up to November, 1933, its billing was at a single charge per ton, but beginning with November, 1933, it separated the charge per ton into an item for the coal and another item for freight in billing its customers. This latter item represented the freight charged appellee per ton for transporting the coal from the mine to its Chicago yard.

Appellee contends that under the terms of the act it properly excluded from the amount of its gross receipts, in computing its tax, amounts paid it by customers to reimburse it for such freight charges. If this contention is sound, the ruling of the superior court is correct. If, on the other hand, appellant's contention is correct that such freight charges are a part of the sale price of the coal, although made a separate item in billing customers, that ruling was erroneous, and the judgment of the trial court should be reversed.

Both appellant and appellee agree that the question presented is one of law and that it is to be determined from the statute. It is therefore unnecessary to set out rule 25 of the appellant department, which purported to deal with freight charges.

Section 1 of the Retailers' Occupation Tax Act (Smith-Hurd Ann. St. c. 120, § 440; Cahill's Rev. St. 1933, c. 120, par. 426), defines selling price as follows: “Selling price' or the ‘amount of a sale’ means the consideration for a sale valued in money whether received in money or otherwise, including cash, credits, services and property of every kind or nature...