Novak v. Redwine, 34737

• Decision Date: 21 January 1954
• Docket Number: No. 34737,No. 1,34737,1
• Citation: 89 Ga.App. 755,81 S.E.2d 222
• Parties: NOVAK v. REDWINE, Revene Commissioner
• Court: Georgia Court of Appeals

Page 222

81 S.E.2d 222

89 Ga.App. 755

NOVAK v. REDWINE, Revene Commissioner.

No. 34737.

Court of Appeals of Georgia, Division No. 1.

Jan. 21, 1954.

Judgment Adhered To on Rehearing March 9, 1954.

SYLLABUS BY THE COURT.

A casual and isolated sale made by one not engaged in the business of selling tangible personal property at retail is not taxable under the Retailers' and Consumers' Sales and Use Tax Act, Ga.L.1951, p. 360 et seq.; Code, Ann.Supp., Chapter 92-34A.

The plaintiff in error, Joe Novak, filed suit in the Superior Court of DeKalb County against Charles D. Redwine, as State Commissioner of the Department of Revenue of the State of Georgia, alleging in substance that, on May 20, 1952, Novak was the owner of certain bakery and store fixtures which had been used by him in the operation of a retail bakery store; that on that date he assigned and transferred this property to another for a consideration of $3,000 and was not engaged in the business of selling bakery and store fixtures nor engaged as a dealer in such commodities; that on August 25, 1952, a total tax of $104.85 was levied upon him by the Sales Tax Unit of the Department of Revenue, which he paid; that thereafter he filed a claim for refund; that this claim, after hearing, was disapproved, and that this decision was erroneous.

A general demurrer was interposed to the petition and, after hearing, was sustained and the petition dismissed. The exception is to this judgment.

Abraham J. Walcoff, Atlanta, for plaintiff in error.

Eugene Cook, Atty. Gen., George E. Sims, Jr., Asst. Atty. Gen., for defendant in error.

QUILLIAN, Judge.

The sole question here is whether a casual and isolated sale made by a seller not engaged in the business of selling tangible personal property at retail is taxable under the Retailers' and Consumers' Sales and Use Tax Act, Ga.L.1951, p. 360 et seq.; Code Ann.Supp., Chapter 92-34A. The various sections of this act will here be referred to, for convenience, as presently codified in the Cumulative Supplement of our Code. Section 92-3402a reads in part as follows: 'There is hereby levied and imposed, in addition to all other taxes of every kind now imposed by law, a privilege or license tax upon every person who engages in the business of selling tangible personal property at retail in this state'. Section 92-3403a contains the following definitions: 'A. 'Person' includes any individual, firm, co-partnership, cooperative, non-profit membership corporation, joint adventure, association, corporation, estate, trust, business trust, receiver, syndicate or other group or combination acting as a unit, body politic or political subdivision, whether public or private, or quasi-public, and the plural as well as the singular number. * * * C. 'Retail sale' or a 'Sale at retail' means: (1) A sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property * * *. J. 'Business' includes any activity engaged in by any person, or caused to be engaged in by him with the object of gain, benefit, or advantage, either direct or indirect. K. 'Retailer' means and includes every person engaged in the business of making sales at retail, or for distribution, or use, or consumption, or storage to be used or consumed in this State. * * * M. 'Tangible personal property' means and includes personal property, which may be seen, weighed, measured, felt, or touched, or is in any other manner perceptible to the senses. * * *'

Under these definitions, the plaintiff in error is liable for a 3% sales tax on his bakery stock and fixtures plus interest, in the amount of $104.85 if he engaged in the activity of selling personal property for purposes other than resale as an activity the object of which was gain, benefit or advantage to himself. It is the contention of counsel for the Revenue Department that the definition of 'business' as 'any activity engaged in by any person * * * with the object of gain, benefit, or advantage' so limits the term, 'every person who engages in the business of selling,' as to make it applicable to a single casual or isolated transaction not connected with one's trade or business generally. Nevertheless, the definition of the word 'business' as stated in the act is closely identifiable with the defintion of the word which is given by Black's law Dictionary as 'that which occupies the time, attention, and labor of men for the purpose of a livelihood or profit,' and which is the commonly accepted meaning of the term. The definition of 'business' as stated in the statute does not say 'any act engaged in for gain,' but rather 'any activity.' Webster's New International Dictionary lists, as synonyms of activity, the words...