Chilivis v. Fleming, 52040

• Decision Date: 23 June 1976
• Docket Number: No. 52040,No. 2,52040,2
• Citation: 139 Ga.App. 295,228 S.E.2d 178
• Parties: N. P. CHILIVIS, Commissioner v. John FLEMING, Exr
• Court: Georgia Court of Appeals

Page 178

228 S.E.2d 178

139 Ga.App. 295

N. P. CHILIVIS, Commissioner v. John FLEMING, Exr.

No. 52040.

Court of Appeals of Georgia, Division No. 2.

June 23, 1976.

Rehearing Denied July 12, 1976.

Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Chief Deputy Atty. Gen., Richard L. Chambers, Deputy Asst. Atty. Gen., H. Perry Michael, Sr. Asst. Atty. Gen., David A. Runnion, Asst. Atty. Gen., Atlanta, for appellant.

William J. Cooney, Augusta, for appellee.

PANNELL, Presiding Judge.

This is an appeal by the State Revenue Commissioner from a ruling of the Superior Court of Richmond County, holding that the Georgia Retailers' and Consumers' Sales and Use Tax Act, particularly the term 'retail sale' as defined in said Act, does not apply to the sale and purchase of chances or plays in a lottery known as the Numbers Game, and that the sale of lottery tickets or chances to participate in the lottery are not taxable under the Act. Error is enumerated upon the grant of summary judgment to the taxpayer and the denial of the Commissioner's motion for total or partial summary judgment based upon his contrary construction of the Act.

There was ample expert testimony that the lottery was known as a numbers game in which the holders of a ticket or chance with the lucky number would win a prize or make a profit, and was played for amusement and the chance of winning, and that the purchasers or holders of tickets were commonly called players, and the tickets and chances were sold for a consideration in order to entitle the holder to play the game and if lucky be a prize winner. That a lottery is a game and is played for amusement as well as the chance of profit has been established by a number of decisions of this court, as well as, that those purchasing a ticket or number are players and that the purchase of a ticket or number is a sale. See in this connection Britton v. State, 69 Ga.App. 868, 869, 27 S.E.2d 100; Riley v. State, 68 Ga.App. 747, 748, 24 S.E.2d 69; Clay v. State, 94 Ga.App. 553, 554, 95 S.E.2d 471; Ramsey v. State, 85 Ga.App. 245, 247, 69 S.E.2d 98; Thomas v. State, 85 Ga.App. 868, 871, 70 S.E.2d 131; Hodges v. State, 100 Ga.App. 607, 608, 112 S.E.2d 226. An examination of foreign authorities indicates that this seems to be a universal concept that a lottery is both a game and an amusement.

That a game is an illegal one does not alter the situation under the Act. Undercofler v. American Legion Post 69, Undercofler v. V.F.W. Post 4625, 112 Ga.App. 27, 143 S.E.2d 684 adopting the opinion in Division 2 of the decision in Undercofler v. V.F.W. Post 4625, Undercofler v. American Legion Post 69, 110 Ga.App. 711, 139 S.E.2d 776.

So, with these matters disposed of, let us proceed with the construction of the statute.

Section 3(c) 1(c) of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga.L.1951, pp. 360, 364) as amended by Section 1 of the Act approved February 25, 1953 (Ga.L.1953, Jan.-Feb. Sess.; Code Ann. § 92-3403a C(1)(c)) reads: '(c) 1. 'Retail sale' or a 'sale at retail' means . . . (c) Sales of tickets, fees or charges made for admission to or voluntary contributions made to places of amusement, sports, or entertainment, including billiard and pool rooms, bowling alleys, amusement devices, musical devices, theatres, opera houses, moving picture shows, vaudeville, amusement parks, athletic contests, including wrestling matches, prize fights, boxing and wrestling exchibitions, football and baseball games, skating rinks, race tracks, public bathing places, public dance halls or any other place at which any exhibition, display, amusement or entertainment is offered to the public or place or places where an admission fee is charged, together with charges made for the operation of coin-operated...