Standard Oil Co. of Kentucky v. State Revenue Commission
| Decision Date | 13 August 1934 |
| Docket Number | 9882. |
| Citation | 176 S.E. 1,179 Ga. 371 |
| Parties | STANDARD OIL CO. OF KENTUCKY v. STATE REVENUE COMMISSION. |
| Court | Georgia Supreme Court |
Rehearing Denied Sept. 25, 1934.
Syllabus by the Court.
1. The act of the General Assembly approved August 29, 1929 (Ga. L. 1929, pp. 103-117), entitled "An act to provide for the raising of public revenue by a tax upon the privilege of engaging in certain occupations and by a tax upon certain business and commercial transactions and. enterprises; to provide for the ascertainment and assessment and collection of such tax; to provide for an appeal and an appellate board to provide penalties for the violation of the terms thereof to provide for deductions and exemptions under this act; and for other purposes," is not unconstitutional as violative of article 7, § 1, par. 2, of the Constitution of 1877. The tax assessed is an occupation privilege sales tax. The constitutional restriction to 5 mills is applicable only to taxes upon property ad valorem.
2. This occupation privilege sales-tax act is not unconstitutional for the reason that it violates article 7, § 2, par. 1, of the Constitution, which provides: "All taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax."
3. The act of 1929, supra, is not violative of the Fourteenth Amendment to the Constitution of the United States, for any reason assigned.
4. The act of 1929, supra, is not unconstitutional as being unreasonable, arbitrary, unjust, confiscatory, and oppressive in so far as it applies to the gasoline industry, nor is it in violation of article 1, § 1, par. 2 of the Constitution of 1877, for any reason assigned.
5. It does not appear from the record that the tax act in question is unreasonable, unjust, oppressive, and confiscatory, for any reason assigned.
6. In section 23 the administration of the act of 1929 "is vested in and shall be exercised by the State tax-commissioner, who shall prescribe the forms and reasonable rules of procedure in conformity with this act for making of returns and for the ascertainment, assessment, and collection of the taxes imposed hereunder."
(a) The power to prescribe forms and rules includes within it the power to alter, vary, and annul such rules or regulations.
(b) That the State Tax Commissioner may have annulled a prior rule of his predecessor will not estop the successor Tax Commissioner from making a reassessment of the occupation privilege sales tax upon one subject thereto, or from enforcing payment of the tax as demanded, especially where the required tax payment has not been made.
7. Under section 11 of the act under consideration, the word "tax" in the first line of said section, properly construed in the light of the express reference in that section to the act of the General Assembly approved August 24, 1927 (Ga. L. 1927, pp. 104, 105, § 2), evidently refers to the gasoline tax of 4 cents per gallon (later amended [Laws 1929, p. 101, § 2] to 6 cents per gallon); and the tax act in question, in this section, merely continued the same policy as to gasoline as that imposed by the act of 1927. Section 11 of the tax act of 1929 cannot be construed as an exemption from the sales tax, as the subject of gasoline is not referred to in either section 4 or section 10 of the act in which sections are stated the exemptions expressly granted. All grants of exemption from taxation must be strictly construed in favor of the state.
8. There being no dispute as to the amount of money, if any, due by the defendant, the court did not err in rendering judgment in favor of the plaintiff.
Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Suit by the State Revenue Commission against the Standard Oil Company of Kentucky. Judgment for plaintiff, and defendant brings error.
Affirmed.
Spalding, MacDougald & Sibley, Sumter M. Kelley, and O. C. Hancock, all of Atlanta, for plaintiff in error.
M. J. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., and John A. Smith, of Atlanta, for defendant in error.
The State Revenue Commission sued the Standard Oil Company of Kentucky, seeking to recover taxes alleged to be due the state under the provisions of the occupation privilege sales-tax approved August 29, 1929 (Ga. L. 1929, pp. 103-117). The case was heard by the judge of the superior court on the pleadings and an agreed statement of facts, without the intervention of a jury. The court found in favor of the plaintiff, and rendered judgment for the amount claimed in the petition. On this judgment the defendant assigned error.
The material facts appearing from the pleadings and agreed statement are as follows: The suit filed by the plaintiff claims $24,260.40 principal as due the state by the defendant as the tax on the gross proceeds of its sales of gasoline from October 1, 1929, through December 31, 1931, as follows: $12,887.57, being two mills on the dollar for its sales at retail; and $11,372.83, being one mill on the dollar of its sales at wholesale, as prescribed in section 4 of the act of 1929, supra. It was admitted that other than the amount sued for, the defendant had paid the state all taxes due. R. C. Norman was State Tax Commissioner prior to October 1, 1929, the effective date of the act of 1929, and by section 23 of this act the administration thereof was vested in him. He continued in office until August 22, 1931, at which time Paul H. Doyal succeeded him as State Tax Commissioner, charged with the administration of said act. R. C. Norman issued a ruling to the effect that sales of gasoline did not come within the provisions of the tax act of 1929 on gross sales, and issued a form to be used by taxpayers in making returns under that act, upon which form the following language appeared: On November 2, 1931, Paul H. Doyal, Tax Commissioner, issued a ruling reversing the previous ruling of his predecessor in office, by the following language: Commissioner Doyal, in December, 1931, ordered all taxpayers engaged in selling gasoline to file a return showing all sales of gasoline made by each of them from October 1, 1929, to and including December 31, 1931, and to make payment to the state under the act of 1929, supra, in accordance with his ruling. The defendant filed a return under protest. Defendant admits that the amount claimed by the plaintiff is correct, provided the defendant is liable at all. The price at which the defendant sold gasoline before and at the time of the passage of the act of 1929, and during the time said act was operative, was and is now determined by the defendant. In arriving at the selling price of its gasoline the defendant gave consideration to the elements ordinarily entering into the fixing of the sales price of any commodity, including among others the cost of production, freight rates, competition, ad valorem, and all other taxes.
As will be seen from the foregoing statement, the defendant denies liability for the tax demanded by the State Tax Commissioner, but admits that if it is liable at all the amount demanded is correct.
1-5. The rulings in headnotes 1 to 5, inclusive, require no elaboration.
6-8. The occupation privilege sales-tax act of 1929 (Ga. L. 1929 pp. 103-117) is defined as "An Act to provide for the raising of public revenue by a tax upon the privilege of engaging in certain occupations and by a tax upon certain business and commercial transactions and...
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