Bear's Den, Inc. v. State, 37039
| Decision Date | 27 February 1958 |
| Docket Number | No. 37039,No. 1,37039,1 |
| Citation | 97 Ga.App. 288,102 S.E.2d 915 |
| Parties | BEAR'S DEN, Inc. v. STATE of Georgia |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A person engaged in the sale of tangible personalty at retail is bound to exercise only ordinary care in safekeeping and remitting the 'sales tax' collected by him as an agent of the State.
A 'sales tax' fi. fa. issued by the State of Georgia was levied on certain personal property of the Bear's Den, Inc. The defendant in fi. fa. filed an affidavit of illegality and posted a forthcoming bond. Thereafter the State filed a motion to dismiss the affidavit of illegality which was sustained, and it is to this judgment that the defendant in fi. fa. excepts. The constitutional questions raised in the affidavit of illegality and the motion to dismiss were, according to the bill of exceptions, abandoned in the trial court.
Bloch, Hall, Groover & Hawkins, Denmark Groover, Jr., Macon, for plaintiff in error.
Eugene Cook, Atty. Gen., Ben F. Johnson, Jr., Hugh Gibert, Deputy Asst. Attys. Gen., for defendant in error.
The defendant in fi. fa., in its affidavit of illegality, does not contend that the amount due as stated in the fi. fa., if due, is erroneous, or that it, for some good reason, had not collected the 'sales tax' from its customers, but attempts to set up as a defense to the fi. fa. the fact that the 'sales tax' was stolen from it without fault on its part, and it is therefore not liable to the State in any amount.
The State contends that the defendant in fi. fa., after having collected the 'sales tax' from its customers has the absolute duty to turn the tax so collected over to the State and that the fact that it was stolen after being collected is no defense.
Therefore, the sole question for decision is whether a retailer, who has collected the 'sales tax' from its customers, has the absolute duty to pay the State the 'sales tax' or whether, if, after the 'sales tax' has been so collected, it is stolen without fault on the part of the retailer, he is relieved under any circumstances, from paying the State the amount of the tax.
The defendant in fi. fa. contends that it is an agent in the collection of such tax and therefore is only bound to exercise ordinary care as other agents for hire (Code, § 4-203), and that under its affidavit of illegality this was done. In support of this contention it relies on those sections of the 'Georgia Retailers' and Consumers' Sales and Use Tax Act' (Ga.L.1951, pp. 360 et seq.; Code Ann., Ch. 92-34a), which state that the tax is on the consumer and not the seller, and that for the purpose of collecting the tax the 'retailer' is 'merely an agent of the State.'
The above section of the Act (Code Ann., § 92-3414a), which names the dealer as an agent has not been previously construed, but under the decision of this court in Maynard v. Thrasher, 77 Ga.App. 316, 319, 48 S.E.2d 471, which case dealt with a similar provision in the 'Motor-Fuel Tax Law' (Code Ann., Ch. 92-14), it must be held that the defendant in fi. fa., for the purpose of collecting and remitting the 'sales tax,' is not a taxpayer, but is in fact merely an agent of the State. Accordingly, the contention of the State that the defendant in fi. fa., under the line of decisions exemplified by Cronheim v. Postal Telegraph-Cable Co., 10 Ga.App. 716, 74 S.E. 78, was a taxpayer after having collected the sales tax from the consumers is without merit.
After the above determination is made the remaining question for decision is whether the defendant in fi. fa., after it has collected the tax, can defend the levy upon the ground that it exercised ordinary care for the tax money so collected by it, and that it therefore is not liable to the State where as here the tax was stolen without fault on its part.
The defendant in fi. fa. was not an agent as contemplated by Code Ch. 89-8 since it was not employed,...
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