Fair Lanes, Inc. v. Comptroller of Treasury

• Decision Date: 02 June 1965
• Docket Number: No. 201,201
• Parties: FAIR LANES, INC., et al. v. COMPTROLLER OF the TREASURY, State of Maryland, and Board of County Commissioners of Anne Arundel County.
• Court: Maryland Court of Appeals

Page 157

239 Md. 157

210 A.2d 821

FAIR LANES, INC., et al. v. COMPTROLLER OF the TREASURY, State of Maryland, and Board of County Commissioners of Anne Arundel County.

No. 201.

Court of Appeals of Maryland.

June 2, 1965.

Argued by Hamilton O'Dunne, Baltimore (Abel J. Merrill, Baltimore, on the brief), and reargued by Hamilton O'Dunne, for appellants.

Argued by Joseph W. Hoy, Annapolis (Henry J. Tarantino and Richard N. Hambleton, Annapolis, on the brief), for appellee Board of County Com'rs of Anne Arundel County.

No brief or appearance for appellee Comptroller of Treasury.

Reargued by Robert J. Martineau, Asst. Atty. Gen., Baltimore (Thomas B. Finan, Atty. Gen., Baltimore, on the brief), and Bennett Crain, Jr., County Sol. for Anne Arundel County, Md., Annapolis, for appellees.

Argued Feb. 10, 1965, before PRESCOTT, C. J., and HAMMOND, MARBURY, SYBERT and BARNES, JJ.

Reargued June 2, 1965, before PRESCOTT, C. J., and HAMMOND, HORNEY, MARBURY, SYBERT, OPPENHEIMER and BARNES, JJ. MARBURY, Judge.

The appellants, Fair Lanes, Inc., Ritchie Bowling Lanes, Inc., and Southwest Bowling Lanes, Inc., are operators of bowling centers in Anne Arundel County. On March 24, 1964, they filed a bill of complaint for declaratory and injunctive relief in the Circuit Court for Anne Arundel County against the appellees, Comptroller of the Treasury, State of Maryland, and the Board of County Commissioners of Anne Arundel County, Contesting the applicability to them of the Anne Arundel County admissions and amusement tax. The trial court, after taking testimony, entered an order dismissing the amended bill of complaint. That court held that Code (1957), Article 81, Section 403(a) grants to Anne Arundel County the authority to impose a tax on the gross receipts derived from the amounts charged by appellants for bowling in their centers. Appellants appealed from the order of the lower court.

The issue here is whether the gross receipts from charges made for bowling are within the purview of the State enabling act, Section 403, as provided in the statewide taxing act, Code (1964 Cum.Supp.), Article 81, Section 402. The pertinent provisions are:

'Admissions and Amusement Tax

' § 402. Levy and amount.

'There shall be levied, collected and paid a tax at the rate of one-half of one percentum (1/2%) of the gross receipts of every person, firm or corporation derived from the amounts charged for (1) admission to any place, whether such admission be by single ticket, season ticket or subscription, (2) admission within an enclosure in addition to the initial charge for admission to such enclosure, (3) the use of sporting or recreation facilities or equipment, and (4) admission, cover charge for seats or tables, refreshment, service or merchandise at any roof garden, cabaret or other similar place where there is furnished a public performance when payment of such amounts entitles the patron thereof to be present during any portion of such performance. The term 'roof garden or other similar place' shall include any room in any hotel, restaurant, hall or other public place where music or dancing privileges or other entertainment, except mechanical music, radio or television, alone, and where no dancing is permitted, are afforded the patrons in connection with the serving or selling of food, refreshment or merchandise. (Italics supplied.)

' § 403. Additional tax by local governments.

'(a) Authorized; rate. Any county shall be authorized by resolution to levy a tax on the gross receipts of every person, firm or corporation obtained from sources within said county but not within any incorporated city or town thereof, derived from the amounts charged for admission or refreshment, service and merchandise to the same extent and in the same manner as that levied by the State under the provisions of § 402; * * *. (Italics supplied.)

'(b) Collection. The tax authorized to be levied by the provisions of this section shall be collected by the Comptroller and paid in the same manner as the tax levied by the State.'

The Comptroller of the Treasury, pursuant to Section 402, collects from appellants a State admissions and amusement tax of one half of one percent upon their gross receipts derived from amounts charged by them for bowling. They do not challenge the collection of this tax. However, on October 31, 1963, the Board of County Commissioners of Anne Arundel County adopted resolution 63-156 pursuant to the authority granted by Section 403. This resolution imposed an Anne Arundel County admissions and amusement tax of three percent effective February 1, 1964. Thereafter, the Comptroller demanded that appellants pay a combined State and Anne Arundel County admissions and amusement tax of three and one-half percent of their gross receipts and since that date they have made such payments to the Comptroller but under protest as to the Anne Arundel County levy on receipts from bowling.

On this appeal, the appellants do not challenge the validity of either of the sections. However, they claim that there is a substantial and critical difference in the wording of the two sections so that their gross receipts fall within the purview of Section 402, but that their gross receipts from bowling are beyond the scope of Section 403(a)....