Cusick v. Com.

Citation260 Ky. 204,84 S.W.2d 14
PartiesCUSICK et al. v. COMMONWEALTH et al.
Decision Date21 June 1935
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Franklin County.

Action under Declaratory Judgment Act by J. L. Cusick and others against the Commonwealth of Kentucky and others. From an adverse judgment, plaintiffs appeal.

Affirmed.

H. B Jones, of Louisville, for appellants.

Bailey P. Wootton, Atty. Gen., and S. H. Brown, Asst. Atty. Gen for appellees.

CLAY Chief Justice.

Suing on their own behalf and on behalf of others having a common interest, J. Roy and J. L. Cusick, doing business under the firm name of J. L. Cusick, brought this action against the auditor of public accounts for a declaration of rights under the Declaratory Judgment Act (Civ. Code Prac. § 639a___1 et seq.). The particular question presented for decision was whether photographs were subject to the 3 per cent. sales tax. The trial court held that they were, and rendered a judgment dismissing the petition. The appeal challenges the propriety of that ruling.

The Gross Receipts Tax Law of 1934 provides: "An excise tax is hereby imposed on every merchant engaged in the sale of tangible personal property at retail, equal to three per centum (3%) of the aggregate gross receipts from the sale of tangible personal property by merchants made after this act becomes effective, and every merchant engaged in the sale of tangible personal property at retail is required to collect the tax from the purchaser and/or account to the State of Kentucky for such tax, in the manner provided in this act." Section 4281v-3, Kentucky Statutes, Baldwin's 1934 Special Supplement.

For the purpose of the act, a "merchant" is defined "as a person regularly engaged in the vending of tangible personal property." The term "sales at retail" is defined as "sales of tangible personal property not intended for resale." The term "does not include casual sales by a person not regularly engaged in making sales, sales of material which enters into and becomes a part of a finished product to be offered for sale including the container in which such product is sold." "Gross receipts" are deemed "to include receipts by a merchant operating a place of business or store, irrespective of whether or not the amounts be received for sales made at the store," etc. The term "store" is defined "as a building, room, or place in or at which tangible personal property is kept for sale, or from or at which such property is sold." Section 4281v-2, Kentucky Statutes, Baldwin's 1934 Special Supplement.

Briefly stated, the facts pleaded are: Plaintiffs are operating and conducting a photographic studio in the city of Louisville and are engaged in drawing, painting, enlarging, and making pictures, and in operating their said business of...

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11 cases
  • Voss v. Gray
    • United States
    • United States State Supreme Court of North Dakota
    • May 2, 1941
    ...... . .          A. photograph is personal property and, being corporeal in. character, it is tangible personal property. Cusick v. Com. 260 Ky. 204, 84 S.W.2d 14. . .          Tangible. property is such property as may be seen, weighed, measured,. and ......
  • Voss v. Gray
    • United States
    • United States State Supreme Court of North Dakota
    • May 2, 1941
    ...Bigsby v. Johnson, Cal.Sup., 99 P.2d 268, and cases cited therein; Kamp v. Johnson, 15 Cal.2d 187, 99 P.2d 274;Cusick et al. v. Commonwealth of Kentucky, 260 Ky. 204, 84 S.W.2d 14 (a case almost identical with the instant case). It is true that some courts have held contrary to the views ex......
  • Berry-Kofron Dental Laboratory Co. v. Smith
    • United States
    • United States State Supreme Court of Missouri
    • February 21, 1940
    ...to be used or consumed by the latter in fabricating the articles which he delivers to his patient. Respondents cite Cusick v. Commonwealth (Ky.), 84 S.W.2d 14, State Tax Commission v. Hopkins (Ala.), 176 So. 210. In the Cusick case the question was whether a photographer, in making and sell......
  • Crescent Amusement Co. v. Carson
    • United States
    • Supreme Court of Tennessee
    • July 17, 1948
    ...Corp. v. Graves, 243 A.D. 652, 276 N.Y.S. 674; 268 N.Y. 648, 198 N.E. 539; Voss v. Gray, 70 N.D. 727, 298 N.W. 1; Cusick v. Commonwealth, 260 Ky. 204, 84 S.W.2d 14; State Tax Commission v. Hopkins, 234 Ala. 556, So. 210. The statute makes no distinction between sales and rentals. The langua......
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