State v. City Wholesale Grocery Co., 6 Div. 980
| Decision Date | 16 January 1969 |
| Docket Number | 6 Div. 980 |
| Parties | STATE of Alabama v. CITY WHOLESALE GROCERY CO., Inc. |
| Court | Alabama Supreme Court |
MacDonald Gallion, Atty. Gen., Willard W. Livingston and Wm. H. Burton, Asst. Attys. Gen., for appellant.
Jas. C. Barton and Deramus & Johnston, Birmingham, for appellee.
This appeal is from a decree entered by the Circuit Court of Jefferson County, Alabama, in Equity, setting aside a State Department of Revenue assessment against City Wholesale Grocery Company, Inc., a Corporation.
The case originated as an appeal taken under Title 51, Sec. 140, Code of Alabama 1940, to the Jefferson County Circuit Court, in Equity, by the appellee (appellant below) from a final assessment of tobacco sales tax and penalties in the total amount of $35,736.85 which was made against the appellee by the Department of Revenue on December 15, 1960, and under the provisions of Title 51, Sec. 718 et seq., Code of Alabama 1940, Act No. 637, 1959 Acts of Alabama, Vol. 2, p. 1550, 1958 Recompiled Code, 1967 Cum. Pocket Part.
The final assessment was based on alleged violations by the appellee of the Alabama Tobacco Sales Tax Act, particularly Sec. 718, supra, and Sec. 719, Act No. 296, Vol. 1, p. 590, 1951 Acts of Alabama, 1958 Recompiled Code, and Sections 731 and 732, Code of Alabama 1940.
The appellee, City Wholesale Grocery Company, Inc., is a licensed wholesaler of tobacco products in the State of Alabama. During the period of July and August 1960, State Revenue agents confiscated from some twenty or more retailers in the Jefferson County area a large number of packages of cigarettes which it was alleged had counterfeit or bogus state revenue stamps attached. Some 1400 of these individual packages of cigarettes confiscated as contraband were taken from retailers who had allegedly purchased them from appellee either directly or indirectly. It was also alleged that of the approximately 1400 confiscated packages of cigarettes which had stamps affixed to them, all had spurious or counterfeit state stamps; and of those stamps which had been canceled, as provided by law, with an assigned cancellation number, the number '9' appeared on them. The number '9' was admittedly the cancellation number assigned to the appellee as a licensed wholesaler of tobacco products.
The trial court, sitting without a jury, entered a decree in favor of the appellee which set aside the final assessment made by the Department of Revenue. From that decree, the Revenue Department takes this appeal.
As noted above, this case originated as an appeal taken under Title 51, Sec. 140, Code of Alabama 1940. After setting out, among other things, under what circumstances an appeal may be taken, said section provides: '* * * The assessment made by the department of revenue shall prima facie be correct, and where the appeal is taken by the taxpayer the burden shall be on the appellant to show that such assessment is incorrect. * * *'
The State argues that appellee (appellant below) failed to carry the burden placed upon it by statute. We disagree.
As we interpret the pertinent portion of Sec. 140, supra, all that it provides is that the burden of going forward with the evidence shall be upon the appellant (appellee here) to show that the assessment is incorrect.
The State in this case subpoenaed all of the parties involved in one way or another as its witnesses. There were approximately twenty-two such persons present in court at the start of the trial. In order to expedite matters, the trial court, by agreement with the state attorneys, as well as defense counsel, allowed the state to present its witnesses first. The defense attorney, under the circumstances, carried his client's burden of going forward with the evidence through the unusual method of cross-examination. Although this is perhaps uncommon, we do not see how it matters so long as the burden was sufficiently carried to affirmatively show that the assessment was incorrect. We believe the record supports the trial court's finding that the burden was carried by the appellee (appellant below).
We have previously indicated that the trial court rendered its decision sitting without a jury. The evidence, of course, was...
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