Ralph Child Const. Co. v. State Tax Commission

• Decision Date: 01 June 1961
• Docket Number: No. 9374,9374
• Citation: 12 Utah 2d 53,362 P.2d 422
• Parties: d 53 RALPH CHILD CONSTRUCTION COMPANY, Plaintiff, v. STATE TAX COMMISSION of Utah, Defendant.
• Court: Utah Supreme Court

Page 422

362 P.2d 422

12 Utah 2d 53

RALPH CHILD CONSTRUCTION COMPANY, Plaintiff, v. STATE TAX COMMISSION of Utah, Defendant.

No. 9374.

Supreme Court of Utah.

June 1, 1961.

Howard & Lewis, Provo, for plaintiff.

Walter L. Budge, Atty. Gen., F. Burton Howard, Asst. Atty. Gen., for respondent.

WADE, Chief Justice.

Ralph Child and Ralph Child Construction Company seek by this action a review of sales and use tax assessments against them. Child is a general contractor constructing telephone systems, building and other facilities. He claims the State Tax Commission made five unauthorized assessments of sales and use tax against them because:

(1) The sales tax assessment against the purchase of telephone poles as the ultimate consumer from Southam and Sons is authorized only against the seller and not against the ultimate consumer.

(2) The purchase of telephone supplies and equipment from Kellogg Switchboard and Supply Company was negotiated and title passed f. o. b. to Child in Utah and he was the ultimate consumer so the use tax assessed against Child was unauthorized.

(3) The assessment of either use or sales tax on out of state purchases for out of state use only is unauthorized.

(4) The assessment of sales or use tax on out of state purchases for use in this state but which were later sold without being used for out of state use is unauthorized.

(5) Since there was no primary obligation to pay the tax and no wilful intentions to avoid payment of these assessments the penalties assessed against Child are unauthorized.

We will consider these contentions in the order that they are stated above.

(1) The assessment of a sales tax on the purchase price of telephone poles against Child, the ultimate consumer, was proper. Child purchased these poles from Southam of Spanish Fork, Utah, and set them in the ground under a general contract with the Emery County Union Telephone Association, Inc. to construct a telephone system. The poles were delivered by Southam from May 20 to October 27, 1952. Child set them in the ground and attached them to and made them a part of the telephone system, not as a separate sale to the telephone company but under a general construction contract. Neither Southam nor Child reported such sale to the Tax Commission, which first learned of it in auditing Child's books just prior to February in 1959. All parties concede that the tax has not been paid.

Only one of 26 invoices was introduced in evidence, and there was testimony that it is typical of all of them. Near the bottom of the invoice appears in typewriting the words, 'For Resale,' on the same line with the printed words, 'Sales Tax.' But the auditor testified, 'I don't have any idea' how many of such 'invoices show the words 'For Resale." The Commission argues that this is proof that Child represented to Southam that he was purchasing these poles for resale, and since Child did not resell them, but installed them as a part of the telephone system, thereby becoming the ultimate consumer, Southam is relieved from collecting and paying this sales tax under Section 59-15-5, U.C.A.1953, ¹ and the sole liability to pay this tax was thereby shifted on to Child.

The state has the burden of producing substantial evidence which would reasonably justify a finding that Child made such a representation. ² The only evidence tending to show such a representation is this one invoice and the fact that Southam did not report this sale to the Commission. This, at most, is very weak circumstantial evidence of such fact. There is no evidence that the words, 'For Resale,' were on more than one invoice. That invoice was made by Southam, not by Child. There is no direct evidence on the subject except Child's orders stated that all taxes were paid, and Child testified that he did not remember making any such representation. This evidence is not sufficiently substantial upon which to base a finding of such a representation.

All parties concede that Child was the ultimate consumer. ³ Under our statutes the seller or 'vendor' is required to collect tax from the purchaser-ultimate consumer ⁴ and pay it to the state. The primary obligation to pay the tax is on the ultimate consumer but we have repeatedly held that a retailer who makes a taxable sale must pay the state even though he has failed to collect the tax from the consumer. ⁵ However, we are not here concerned with that question. Our present problem is whether the state can collect the tax from the ultimate consumer, whom the statutes make primarily liable therefor, ⁶ where the retailer fails to collect such tax and fails to report such sale and the state does not learn of the sale until after the retailer has gone out of business, and neither the retailer nor the ultimate consumer has paid the tax.

The Commission relies on a statement in E. C. Olsen Co. v. State Tax Commission, that if the articles involved are consumed by the processor as the last user 'the tax must be paid thereon by the processor.' ⁷ Although this out-of-context wording seems to throw some light on our problem we did not have before us or decide in the Olson case the question here presented. There we merely approved sales tax assessments against Olson on goods which he resold to ultimate consumers. No question was raised nor claim made that the state could collect a tax directly from the ultimate consumer where the retailer failed to collect the tax and report the sale.

It is generally recognized that 'courts will give an act such a construction as will accomplish' its purpose. ⁸ The purpose of this act was to collect the sales tax from the person liable to pay it without hardship or injustice. The retailer is required to collect the tax from the consumer and pay it to the Commission as a matter of convenience. But the primary liability to pay the tax is placed on the consumer. Where, as here, the retailer fails to collect the tax or to report the sale until after going out of business, and the amount of sale justifies such procedure the purpose of the act cannot be accomplished unless the Commission can assess the tax directly against the ultimate consumer and collect the same from him. No injury or injustice is thereby done to the ultimate consumer for he is required to pay only his primary obligation which he has not paid because the retailer-vendor failed to collect from him. So we conclude that the proceedings directly against Child as the ultimate consumer were reasonable in view of the purposes of this statute and we affirm the Commission's ruling on this item.

(2) The use tax assessed against Child for telephone equipment and supplies from Kellogg Switchboard and Supply Company is authorized by our statute.

The use tax is imposed on any person storing, using or otherwise consuming tangible personal property in this state, purchased after July 1, 1937. ⁹ Exempted from such use tax ¹⁰ are all sales included in the sales tax, ¹¹ which is limited to sales made in this state. The sales tax and the use tax cover similar sales for the same general purposes, ¹² but a sale covered by the sales tax must be made in this state, so usually the sale involved in a use tax is an out of state sale, but no statute expressly so provides. The use tax applies to a storing, using, or otherwise consuming within this state of goods purchased which are not covered by the sales tax. In such case, the person storing, using or otherwise consuming such property is liable for the use tax, except if the purchase is made through a retailer within this state the tax may be collected by such retailer and paid by him to the Commission. ¹³ But the liability of the consumer is not extinguished until the tax is paid to this state. ¹⁴

The purpose of the use tax is to impose a tax in the same amount as the sales tax would have imposed were it applicable. Here, although the title to the property passed in this state and the sale was negotiated here, the seller shipped the goods from out of the state and there was no retailer within this state involved in this transaction. The sales tax emphasized the fact that ordinarily a retailer will collect that tax whereas the use tax contemplates that the consumer will pay the tax directly to the Commission. Since there is no express provision in our statute that the sale involved in a use tax must be an out of state sale, we conclude that under the facts of this case this transaction is not covered by the sales tax and therefore is covered by the use tax. Such being the case, Child had a direct obligation to pay this tax to the Commission from which he cannot be discharged unless the tax is actually paid. On the other hand, even if the use tax is not applicable and the sales tax is, Child would be obligated to pay this tax to the state on the same theory adopted in the first point above decided, that where no retailer has either collected the tax from the consumer nor paid the tax to the state, the ultimate consumer is obligated to make such payment.

(3) and (4). The use tax was properly assessed for other goods purchased by Child and delivered to him in this state. We consider these two claims together.

The invoices and bills of lading clearly show that all of the goods assessed were shipped and delivered to Child in this state. Our statute expressly provides that 'it shall be presumed that tangible personal property sold by any person for...