Hawes v. Phillips
| Decision Date | 30 October 1970 |
| Docket Number | 45239,Nos. 45238,No. 2,s. 45238,2 |
| Citation | 122 Ga.App. 714,178 S.E.2d 759 |
| Parties | Peyton S. HAWES, Commissioner, v. Paul E. PHILLIPS et al. Peyton S. HAWES, Commissioner, v. C. D. DILWORTH et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The trial court erred in construing the Georgia Retailers and Consumers Sales and Use Tax Act as requiring a retailer, whose duty it is to collect the tax, to remit to the State only three percent of its gross taxable sales as to those sales, or portion of sales, which are fractional parts of a dollar; and based thereon, erred in holding that the entire bracket system for the collection of tax on such fractional parts of a dollar promulgated by the Revenue Commissioner pursuant to authority granted, was in excess of the powers so granted.
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., William L. Harper, James B. Talley, Asst. Attys. Gen., Timothy J. Sweeney, Deputy Asst. Atty. Gen., Atlanta, for appellant.
Thomas M. Strickland, Royston, for Phillips and others.
William V. Hall, Sr., Atlanta, for Dilworth and others.
These cases arise out of assessments imposed by the Revenue Commissioner against the appellees under the Georgia Retailers and Consumers Sales and Use Tax Act (Ga.L.1951, p. 360, as amended; Code Ann. §§ 92-3401a, et seq.) and only concern that tax on sales, or that portion of sales, of less than $1.00. The Commissioner is attempting to collect under the bracket system as promulgated by the Commissioner (Revenue Regulation 560-12-1.05, Vol. VI, Official Compilation, Rules and Regulations of the State of Georgia) pursuant to Section 22(b) of the said Act (Code Ann. § 92-3440a) which results in a tax above a mathematical three percent of the sales involved. The retailer taxpayers contend that under the Act they are only required to pay a strictly mathematical three percent of their gross taxable sales, meaning by their construction of gross taxable sales, the sum total of all taxable sales made by the retailer taxpayer. See Section 3 of the Act (Code Ann. § 92-3403a, subd. D(1)). Attacks are made upon the bracket system, as well as the provisions of the Act authorizing the Commissioner to establish a bracket system. In case number 45239, the amount of tax, as assessed according to the bracket system was stipulated. In case number 45238, the record discloses no stipulation, although the order of the trial judge, which is practically identical in both cases, recites there was such a stipulation. The Commissioner's assessment in case number 45328 was established by a sampling method and the assessment was made based thereon by application of the bracket system. Both sides, on appeal to the superior court, made motions for summary judgment and the trial judge granted summary judgment in behalf of the taxpayers, holding in his order that the regulation of the Commissioner establishing the bracket system was unauthorized by the Georgia Retailers and Consumers Sales and Use Tax Act and based his ruling upon the construction of the Act that the dealer was liable only for a mathematical three percent of its gross sales and that the authorization under the Act to install a bracket system could not result in the collection of a tax of more than a mathematical three percent from the dealer. The Revenue Commissioner appealed to this court.
The tax levied under the Sales Tax Act, irrespective of whom it is levied against, is a three percent tax on all sales covered under the Act. It is obvious that the collection of a three percent tax on sales under a dollar (except where the sale price is exactly .33333cents or .66666cents) by necessity requires the collection of more than three percent by a purely mathematical calculation. For example, a 1cents sale of merchandise would require a payment of 1cents tax, the penny being our lowest circulating monetary division. This amounts to a 100% tax. On a 5cents sale, it amounts to a 2% tax. We must assume, however, that the legislature acted with knowledge of this monetary situation, and, therefore, that it intended by levying a 'three per cent' tax to require the payment and collection of the 'overage' on sales of less than $1.00, it having expressly prohibited the use of tokens. We accordingly hold that a bracket system which does not require the payment and collection of more than the necessary amount of coinage required to pay and collect the three percent levied on sales of a fractional part of a dollar, is not contrary to the legislative grant of authority to the Revenue Commissioner to devise a bracket system for the collection of taxes, nor is the grant of authority to provide for the bracket system a grant of authority to increase the tax levied by ...
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...engaged in selling tangible personal property at retail, with the tax computed on gross sales of the retailer. Hawes v. Phillips, 122 Ga.App. 714, 716-717, 178 S.E.2d 759 (1970); Williams v. Gen. Finance Corp., 98 Ga.App. 31, 34(1), 104 S.E.2d 649 In 1960, the Act was amended to impose the ......
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Blackmon v. Georgia Independent Oilmen's Ass'n, s. 47712
...on each transaction a tax dual in nature focusing primarily on the purchaser but also on the seller. Code Ann. § 92-3402a(a); Hawes v. Phillips, 122 Ga.App. 714 (, 178 S.E.2d 759) 'Since Code Ann. § 92-8436(b) extends the State's consent to be sued only to the 'taxpayer's who has overpaid h......
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In re Hatfield Construction Company, 73-3403.
...on the purchaser with secondary liability on the seller to collect and remit the tax. See Newscopters, Inc., supra; Hawes v. Phillips, 1970, 122 Ga.App. 714, 178 S.E.2d 759; Undercofler v. Capital Automobile Company, 1965, 111 Ga.App. 709, 143 S.E.2d In this connection the well reasoned opi......
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Blackmon v. Premium Oil Stations, Inc., 47932
...amendment which imposed the sales tax primarily on the purchaser. Ga.L.1960, pp. 153, 154 (Code Ann. § 92-3402a(a)); Hawes v. Phillips, 122 Ga.App. 714, 178 S.E.2d 759. (b) The evidence shows that through this entire period every sales tax filed by the claimant also contained a claim for th......