Blackmon v. Coastal Service, Inc.

• Decision Date: 12 September 1972
• Docket Number: No. 27012,27012
• Citation: 192 S.E.2d 372,229 Ga. 471
• Parties: John A. BLACKMON v. COASTAL SERVICE, INC.
• Court: Georgia Supreme Court

Page 372

192 S.E.2d 372

229 Ga. 471

John A. BLACKMON v. COASTAL SERVICE, INC.

No. 27012.

Supreme Court of Georgia.

Sept. 12, 1972.

Rehearing Denied Sept. 25, 1972.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Richard L. Chambers, Timothy J. Sweeney, Asst. Attys. Gen., Atlanta, for appellant.

William T. Gerard, Athens, for appellee.

Alston, Miller & Gaines, Oscar N. Persons, Heyman & Sizemore, William H. Major, Ralph G. McCallum, Jr., Louis C. Parker, III, Atlanta, amicus curiae.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

We granted the writ of certiorari in this case to review the judgment of the Court of Appeals (125 Ga.App. 28, 186 S.E.2d 441) on the question of whether the State cigarette tax imposed by Ga.L.1955, p. 268 as amended (Code Ann. § 92-2201 et seq.) is an element of the 'cost of the property sold' and is, therefore, included in 'gross sales' and 'sales price' upon which the sales and use tax is calculated.

We have carefully reviewed the opinion of the Court of Appeals on the question and after further consideration concluded that its judgment is correct, and it is unnecessary to add any further reasons than those set out in the opinion of the Court of Appeals.

Judgment affirmed.

All the Justices concur, except HAWES and GUNTER, JJ., who dissent.

GUNTER, Justice (dissenting).

I am in disagreement with the decision and judgment of the Court of Appeals (125 Ga.App. 28, 186 S.E.2d 441), and I would reverse.

In 1967 the General Assembly of Georgia amended the Tobacco Tax Act as it had previously existed, the preceding amendment thereto having been enacted in 1964 (Ga.L.1964, p. 50). The caption of the 1967 amendment provided, in part, as follows: 'So as to provide additional definitions; to provide that the tax imposed shall be advanced and paid upon the first taxable transaction; to provide who shall advance and pay such tax; to provide that such tax may be recovered from the ultimate consumer or purchaser; . . .'

The body of the Act followed the caption by defining 'first taxable transaction' as the first sale, receipt, purchase, possession, consumption, handling, distribution, or use of cigars or cigarettes within the State.

The body of the 1967 Act also specifically repealed subsections (a) and (e) of Sec. 3 of the Act as it had formerly existed, and these two subsections, which had been enacted by the 1964 amendment, had placed the tobacco excise tax on the ultimate consumer. Since these two subsections were specifically repealed, it is clear to me that it was the intention of the General Assembly to remove the tobacco excise tax from the ultimate consumer provided there was a 'first taxable transaction' as defined above prior to the tobacco products coming into the hands of the ultimate consumer. If there was no 'first taxable transaction' prior to the tobacco products coming into the hands of the ultimate consumer, then I concede that the General Assembly intended for the ultimate consumer to pay the tobacco tax.

After repealing those two subsections, the 19...