In re Page Express, Inc.

• Decision Date: 11 July 1963
• Docket Number: No. 30183.,30183.
• Citation: 220 F. Supp. 14
• Court: U.S. District Court — District of Connecticut
• Parties: In the Matter of PAGE EXPRESS, INC., Bankrupt.

220 F. Supp. 14

In the Matter of PAGE EXPRESS, INC., Bankrupt.

No. 30183.

United States District Court D. Connecticut.

July 11, 1963.

John W. Barnett, Wiggin & Dana, New Haven, Conn., for petitioner.

Norton M. Levine, New Haven, Conn., for Trustee in Bankruptcy.

Bernard J. Virshup, Merriam & Virshup, New Haven, Conn., for Page Express, Inc.

ANDERSON, Chief Judge.

Petitioner, Humble Oil & Refining Company, is a distributor of gasoline in the State of Connecticut. Between September 1, 1959 and March 14, 1961, it sold and delivered to Page Express, Inc., a quantity of gasoline. As such distributor, petitioner, before the 25th day of each of the months during the period, made a record of the gallons of gasoline distributed to Page Express during the preceding month and sent a report of such distributions to the Connecticut State Tax Commissioner on forms supplied by the Commissioner. With each such report petitioner paid to the Tax Commissioner the tax of 6 cents per gallon which, as distributor, it was required to pay on the gasoline sold and delivered to Page Express.¹ For the period in question these monthly tax payments totalled $1,962.78. Thereafter, Page Express, Inc. was adjudicated a bankrupt.

Petitioner filed a preferred claim against the debtor's estate for $1,962.78, asserting priority under § 64, sub. a(4) of the Bankruptcy Act, on the ground that the money was used to pay taxes and that petitioner was subrogated to the State's priority right. The Referee decided that petitioner had a general claim only and refused to give it priority.

Petitioner asserts that the primary liability for payment of the gasoline tax rests upon the debtor as purchaser. If this is not so, but, instead, the tax is primarily the debt of the petitioner, there can be no subrogation. Gulf Oil Corp. v. Grady, 110 F.2d 178 (2d Cir. 1940). An examination of the pertinent sections of Chapter 221 of the Connecticut statutes² leads this court to conclude for the purpose of considering a claim in bankruptcy, that, contrary to petitioner's position, the primary responsibility for the payment of the gasoline tax is imposed upon the petitioner-distributor. While the purchaser is exposed to a civil action by the Tax Commissioner under § 12-464 if he has not made the payment after the distributor has failed to do so under § 12-458, it is § 12-458 which sets out the rate of the tax and the person required to pay it, and it specifies the distributor as that person. It calls for no action at all on the part of the purchaser. The distributor also is required to be licensed and, as a prerequisite thereto, it is obligated to furnish a bond conditioned upon payment of the tax. Moreover, § 12-464 imposes a criminal sanction upon the distributor for failing to comply with § 12-458 but places no such penalty on the purchaser. The petitioner argues that the purchaser is made primarily liable for the payment of the tax by that portion of § 12-458 which says "* * * each distributor shall pay to the commissioner for the account of the purchaser or consumer a tax * * *" While it is true that the general underlying purpose of the gasoline tax statutes is to place an excise tax upon motor vehicle users of the public highways and the phrase "for the account of the purchaser or consumer" recognizes that the tax is customarily passed along from distributor to purchaser and ultimately to consumer, Spencer v. Consumers Oil Co., 115 Conn. 554, 162 A. 23 (1933), Anastasio v. Gulf Oil Corp., 131 Conn. 708, 42 A.2d 149 (1945), nevertheless, neither the statutes nor the cases seek to place an affirmative duty on the purchaser to reimburse the distributor or to say that it is primarily the purchaser's debt. On the contrary, the court said in Anastasio, bottom of page 715 and top of page 716 of 131 Conn., page 153 of 42 A.2d, "* * * the distributor is not required to collect from the purchaser the amount of tax levied on gasoline the latter buys * *" and the "reporting" section of the statute, § 12-457, does not ask for a report that the purchaser has been charged the tax but "whether or not the required state tax has been charged." The phrase in § 12-458 "for the account of the purchaser or consumer" was not to create a right-duty relationship for payment of the tax by purchaser or consumer to distributor but was intended as a necessary part of administrative record keeping to afford a breakdown of the total monthly distributions of gasoline by a distributor so that the tax commissioner would know against what purchaser to proceed under § 12-464 if the distributor defaulted, to preserve materials for investigative procedures, and, in the case of consumers, to check tax payments where refunds were sought.

Section 12-459, providing for a refund to a user, is not persuasive to show that the purchaser or user is the one primarily responsible for payment of the tax, because it is only in the event that the non-highway user can show that he has had the tax passed along to him and that he has paid it, that he can obtain a refund. The refund portion of § 12-461, however, provides for a refund to the distributor, the only one having a statutory right to appeal in the event of a finding of illegal exaction. The obligation of the purchaser to reimburse the distributor for the tax and the duty of the user or consumer to reimburse the purchaser are left to the consensual arrangements of the parties. The State of Connecticut is completely indifferent to the question of whether or not the tax is passed along. In spite of the general theory that the tax is one on users of the public highways, the law of Connecticut has not, in the sense of fixing ultimate responsibility, made the purchaser or consumer primarily liable for the tax.

The tax is a debt due from the distributor. Anastasio v. Gulf Oil Corp., supra, 130 Conn. page 716, 42 A.2d page 153. Its collection is specifically enforceable by the State against the distributor through power to revoke his license, proceed on his bond, sue in civil action and invoke the penalty of a fine. It is difficult to see how, short of the criminal sanction of imprisonment, a person could become more "liable". The purchaser may only be proceeded against by civil action, § 12-464; and the structure of the statutes, § 12-455 through § 12-464, of which 12-464 is a part, makes it plain that recourse can be had against the purchaser only in case of a default in payment of the tax by the distributor. For example: if a distributor sold 10,000 gallons of gasoline to a purchaser in June, an accounting for and payment of the tax on the gasoline would not be due, under § 12-458, until July 25th. Certainly the State Tax Commissioner could not, under § 12-464, bring a civil action against the purchaser on July 5th for the taxes accrued on the gasoline purchased during June. Such an action would lie only if the distributor had failed to pay the tax "within the time limited therein". It is because of this secondary exposure, or at most joint liability, of the purchaser that each of the petitioner's invoices to the debtor contain the following statement:

"The liability for state motor fuel tax shown on the invoice has been assumed, and will be paid, as required by law."

The obvious purpose of this clause was to reassure the purchaser that the distributor had paid the tax obligation which was the distributor's debt, and that the purchaser would not be subject to recourse for the tax under § 12-464.

Even though the courts of Connecticut should find that a distributor who has paid the gasoline tax is subrogated to a right of the state to collect the tax from the purchaser, the question of the right to priority of the claim in bankruptcy proceedings is a federal one. New York v. Feiring, 313 U.S. 283, 61 S.Ct. 1028, 85 L.Ed. 1333 (1940), City of New York v. Rassner, 127 F.2d 703 (2d Cir. 1942) and New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284 (1906).

In Gulf Oil Corp. v. Grady, supra, unlike the present case, the State of New York, under its statutes could not proceed against a purchaser even if the distributor defaulted, but the basic principle therein enunciated is the same, and that is, that where the payment of the tax is the primary obligation...