Belk Bros. Co. of Charlotte v. Maxwell
| Decision Date | 01 February 1939 |
| Docket Number | 449. |
| Citation | 200 S.E. 915 |
| Parties | 215 N.C. 10, 122 A.L.R. 687 v. MAXWELL, Commissioner of Revenue. BELK BROS. CO. OF CHARLOTTE |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; N. A. Sinclair, Judge.
Action by the Belk Bros. Company of Charlotte against A. J. Maxwell Commissioner of Revenue, to recover the "chainstore" license tax paid under protest. From a judgment of dismissal, the plaintiff appeals.
Judgment affirmed.
In dealing with a fiscal system and in interpreting a revenue act, some play must be allowed for the joints of the machine.
Civil action to recover "chain-store" license tax paid under protest, and alleged to have been wrongfully and illegally collected.
On June 28, 1934, the plaintiff, in response to demand therefor, paid to the defendant, under protest, $3,620 balance of assessment as a "chain-store" license tax for the fiscal year June 1, 1933 to June 1, 1934 on 46 "Belk" Stores in North Carolina, and immediately demanded refund thereof which was "respectfully declined". In apt time and pursuant to the provisions of the statute, plaintiff brings this action to recover back the tax so paid.
On the hearing, a jury trial was waived and the case was submitted to the court on an agreed statement of facts, which, in summary, follow:
1. The tax in question was collected and paid under section 162 of the Revenue Act of 1933, Pub.Laws 1933, c. 445, the pertinent provisions of which follow:
(Schedule omitted, as amount of tax not in dispute.)
"The term 'chain store' as used in this section shall include stores operated under separate charters of incorporation, if there is common ownership of a majority of stock in such separately incorporated companies and/or if there is similarity of name of such separately incorporated companies, and/or if such separately incorporated companies have the benefit in whole or in part of group purchase of merchandise or of common management."
2. The plaintiff is engaged in the general retail mercantile business in the Cities of Charlotte, Mooresville and Kings Mountain, this State, operating therein four units, upon which it has paid and admits its liability for a "chain-store" license tax.
3. The stores in question herein, 46 in number, are scattered throughout the State of North Carolina and bear the name "Belk" in some form or combination, as specifically set out and shown in paragraph 13 of the agreed facts. Each of the stores listed (with the exception of three) is a corporation organized under the State law, and with certain minor exceptions not here in controversy, none of the said corporations owns stock in any of the others.
4. W. H. Belk owns stock in each of the corporations, but neither he nor any other person, firm or corporation, owns a majority of the stock in any of them. (Except the plaintiff owns a majority of the stock in two of the units mentioned in paragraph 2 above, and controls the other two). The said W. H. Belk participated in the organization of all of the corporations, is president of each, and a member of each board of directors, otherwise, the directors are composed of different individuals.
5. The said stores are generally referred to by the public as "Belk" Stores. They generally use wrapping paper upon which is printed: .
6. Each of the corporations furnishes to W. H. Belk, its president, a weekly trial balance statement, which in turn is turned over to the common accountant or auditor, employed jointly by all the corporations, with offices in Charlotte. The salaries of the auditor and his assistants are first paid by the plaintiff, and at the end of each quarter, the several corporations refund these expenses to the plaintiff, with interest, on a pro-rata basis. The auditor also prepares annually an audit of the financial affairs of each of the corporations, and likewise prepares its State and Federal income-tax returns.
7. The said corporations jointly maintain and support a "Buying Office" in New York City, the expenses of which are handled in the same manner as the auditor's office in Charlotte. Group purchases may be effected through the Buying Office, though this is optional with the individual store. Each corporation is likewise permitted to purchase and sell articles of merchandise labeled or branded "Belk".
8. Lastly, it is "stipulated and agreed that if the court should determine the plaintiff or any or all of the corporations or stores listed in paragraph 13 above are liable for the chain-store tax imposed by section 162 of the 1933 Revenue Act, then the plaintiff shall not recover of the defendant the $3,620, heretofore paid by the plaintiff to the defendant."
The court being of opinion that, upon the pleadings and the facts agreed, the plaintiff was not entitled to recover the amount of the tax paid under protest, entered judgment dismissing the action. From this ruling, the plaintiff appeals, assigning error.
Guthrie, Pierce & Blakeney, of Charlotte, for appellant.
Harry McMullan, Atty. Gen., and T. W. Bruton and R. H. Wettach, Asst. Attys. Gen., for appellee.
The intention of the lawmaking body is not difficult of discernment, albeit the language used to express it is awkward enough. Indeed, our principal concern is to ascertain whether the tax-levying provision of the statute covers every "chain store" as subsequently defined in the Act. Harwood v. Maxwell, Com'r of Revenue, 213 N.C. 55, 195 S.E. 54. That the plaintiff comes within the statutory definition of a chain store seems clear, but whether the act is so drawn as to levy a chainstore license tax on the 46 "Belk" Stores having similarity of name and benefit in whole or in part of group purchase of merchandise and perhaps common management is the question for decision. However, if the statute be read with the definition of the term "chain store" interpolated above the tax-levying provision, where it really belongs and was intended to be inserted, which is permissible in our quest for the legislative intent, most of the difficulty would seem to be somewhat minimized. It is true, this rearrangement presents some awkwardness of expression, nevertheless it gives significance and meaning to the obvious purpose and intention of the General Assembly, which, after all, is the real heart of the statute. Branch Banking & Trust Co. v Hood, Com'r, 206 N.C. 268, 173 S.E. 601. Moreover, in dealing...
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