McCarroll v. Scott Paper Box Co.
Decision Date | 18 April 1938 |
Docket Number | 4-5116 |
Citation | 115 S.W.2d 839,195 Ark. 1105 |
Parties | MCCARROLL, COMMISSIONER OF REVENUES, v. SCOTT PAPER BOX COMPANY |
Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor affirmed.
Affirmed.
J Hugh Wharton, for appellant.
Pace & Davis and Henry E. Spitzberg, for appellees.
The question to be determined is whether appellee, Scott Paper Box Company, must collect and pay the Arkansas retail sales tax on pasteboard boxes it manufactures and sells to the Wortz Biscuit Company.
The case was tried on an agreed statement of facts, the material provisions of which are:
The tax sought to be sustained is levied by act 154 of 1937. Under "Definitions" in § 3 the act reads. Section 9 directs that the tax "shall be collected by the retailer from the consumer." Section 14 is:
In its decree permanently enjoining the commissioner of revenues the chancery court said:
"The biscuit company does not change the form of the boxes which become a component part of the articles it sells in large quantities and at wholesale. Neither the Scott Paper Box Company nor the Wortz Biscuit Company uses or consumes the pasteboard or paper boxes, but both of them resell them at wholesale. . . . The tax levied by act 154 is paid by the final purchaser of individually boxed products upon purchase by the final consumer from a retailer.
We agree with the chancellor's analysis of the transactions and his determination of the law applicable thereto.
The stipulation is not reasonably susceptible of any other interpretation. It is clear that the Wortz Company sells at wholesale to a retailer a package of its manufactured products--not a quantity of cakes or cookies or crackers enclosed in a box it has consumed.
It is shown that the container appreciates the selling price by twelve to fourteen per cent. The stipulation makes use of the term "finished article" in identifying the object of ultimate sale. These commodities--cakes, cookies, and crackers--are also sold in bulk by the Wortz Company, and for less, proportionately, than the same merchandise is sold when supplied in packages. The conclusion is inescapable, and the stipulation concedes, that the cost of the packing is added to the sale price, just as the flour, sugar, and other constituents which enter into the manufacturing process become a part of the completed transaction.
Expressed differently, the Wortz Company proposes to prepare, box, and offer in the market at wholesale the particular commodities in question. It buys flour, sugar, soda, salt, shortening, flavoring, etc., as ingredients. None of these components is taxable under act 154 when purchased for the purposes mentioned. The plan of sale, however, calls for wrapping or enclosure in individual cartons at the time of manufacture; and it is for the latter purpose that purchase of pasteboard boxes is made.
Appellant contends there is consumption when the packing operation occurs, and that the boxes form no part of the integration. It urges that the instant case is controlled by Wiseman, Commissioner, v. Arkansas Wholesale Grocers' Association, 192 Ark. 313, 90 S.W.2d 987, where it was held that the sales tax applied to wrapping paper, paper bags, and twine sold by wholesalers to retailers, for use by the latter in facilitating individual sales. But there is this difference: In the suit at bar the retailer receives the completed, wrapped packages. In the Wiseman case the wrapping paper, bags, and twine were sold for convenience of retailers in manually wrapping or enclosing bulk commodities. The price of a dozen oranges, a peck of potatoes, a roast, and other merchandise customarily found in a retail grocery store, is predetermined either by weight or count, without reference to the attributes of delivery.
The opinion in the Wiseman case expressly declares that the subject of the tax was absorbed by the merchant as a part of the cost of doing business, "that is, they are taken care of out of his profits, and not added to the selling price."
In the instant case it is stipulated that the cakes, cookies, and crackers, when sold in bulk, retail for less than if delivered in packages. This admission by appellant shows that cost of packing was added to the wholesale price paid by the retailer; and the retailer, in turn. computed his or her profit by requiring the consumer to pay the wholesale cost, plus the percentage of gain which the circumstance justified.
The decree is affirmed.
SMITH J., (dissenting). The conclusion appears to be inescapable that, if the decree here appealed from is correct, as the majority hold, we were in error in reversing the same chancellor in the case of Wiseman v. Arkansas Wholesale Grocers' Ass'n., 192 Ark. 313, 90 S.W.2d 987. His decrees in these two cases are consistent, and if he is right now he was not in error before.
When that case and this are read together the net result is that paper bags sold to be used as containers for merchandise in the retail trade are subject to the sales tax, whereas paper boxes sold to be used for the identical purpose are not taxable. I find no authority in the Sales Tax law for making this distinction between bags and boxes. An exemption has been given to one dealer which, under the same circumstances, is denied another, and I, therefore, respectfully dissent.
The instant case was heard upon an agreed statement of facts, which must be accepted as true for the purpose of deciding this case, but which, of course, must be read in its entirety.
The former case was disposed of upon a demurrer to the dealer's complaint, so that, in effect, that case was also disposed of upon an agreed statement of facts. It was alleged in the complaint in the...
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