State v. Louis Pizitz Dry Goods Co.
Decision Date | 07 January 1943 |
Docket Number | 6 Div. 34. |
Citation | 243 Ala. 629,11 So.2d 342 |
Parties | STATE v. LOUIS PIZITZ DRY GOODS CO. |
Court | Alabama Supreme Court |
Rehearing Denied Jan. 28, 1943.
Wm N. McQueen, Atty. Gen., and John W. Lapsley, Asst. Atty Gen., for appellant.
Pritchard, Aird & Fox and Victor H. Smith, all of Birmingham, for appellee.
In this case appellee was subject to the Alabama Sales Tax Act of February 8, 1939, page 16, see, Title 51, sections 752 et seq., Code of 1940. He filed this return and paid the tax under the requirement of section VI of the Act (which is section 756, Title 51, Code of 1940), on the 26th of October 1939, whereas that feature of the Act required it to be done on or before the 20th day of the month. And section XIV of the Act provides that In bringing that provision into the Code of 1940 as section 764, there was added: "Provided the department, if a good and sufficient reason is shown, may waive or remit the penalty of ten percent or a portion thereof."
The taxpayer in making payment with return on October 26, 1939, took a discount of three per cent. under section XXXVI of the Act of 1939, page 29, section 785, Title 51, Code amounting to $159.67. The Department of Revenue on that day advised the taxpayer that the penalty of $532.23 and discount of $159.67 and interest of $26.61 were charged to his account because of the failure to make returns and pay the tax by October 20. Thereupon on November 18, 1939, the taxpayer filed with the Department of Revenue an objection to this charge and a petition asserting that the delay was due to an oversight in the office as follows: and prayed "that the time for filing its September, 1939, sales tax return be extended for the period of six days from October 20th to October 26, 1939, within which to file said return, to the end that said return be filed within the time and without incurring any penalty whatsoever for and on account of the filing of the same; and in the alternative petitioner, taxpayer respectfully prays that the State Revenue Commissioner, accept the discount disallowed, namely, $159.67, and the interest asserted, namely, $26.61, the aggregate sum of $186.28, as in full satisfaction of all penalties and interest asserted or to be asserted against taxpayer for and on account of the delinquency herein indicated; or in the alternative that the said sum be accepted as a condition precedent to the commissioner's granting the six days extension of time for filing said return as herein first prayed for."
On March 13, 1940, the department made a ruling as follows:
And on March 12 the commissioner wrote a letter to the attorney for the taxpayer in which it was stated: And on March 13, wrote another letter, in which he stated: On March 30, 1940, the department made an assessment of $718.51, stating that the return and computation were found to be correct, but that they were received on October 26, 1939, and notified the taxpayer that he would be heard on April 22, 1940. On that day the department treated the former petition and objection as refiled and proceeded to reconsider it, and made the assessment final for the sum of $736.47, including accrued interest.
Thereupon, on May 1, 1940, the taxpayer in accordance with the provisions of section XVIII of the said Act (see, Acts of 1939, page 23, also section 768, Code, supra) filed an appeal to the equity side of the Circuit Court of Jefferson County, Alabama, as provided in the Act of April 21, 1936 (Special Session, Acts 1936, page 172: see section 140, Title 51, Code of 1940).
Thereafter on April 1, 1941, with no disposition of the proceeding on appeal, and with it still pending in the Circuit Court, in equity, the taxpayer filed in the same court in equity, and apparently as an incident in the proceeding on such appeal what he termed a petition for "preliminary declaratory judgment," which was later amended by filing a substituted petition, making the "State of Alabama" the sole party respondent, praying as follows: "That a declaratory judgment be rendered adjudging and declaring that the Commissioner of Revenue has the legal authority to enter an order extending the time for petitioner to file its September 1939 Sales Tax return from October 20, 1939 to October 26th, 1939; and that the court specify a period of time in which to afford the Commissioner of Revenue an opportunity to make such an order; and that further proceedings in the main cause be suspended during said period of time; and if petitioner be mistaken as to the relief herein prayed for, petitioner prays for such other further and different relief as to your honor seems meet and proper."
The petition contained the following allegations in part:
This is made manifest by attaching a letter from the Commissioner of Revenue, dated March 13, 1940, and another letter from him dated March 12, 1940, to both of which we have referred.
We think it may be well to repeat emphatically that by virtue of section 14 of the Constitution of Alabama of 1901, under no circumstances and in no sort of suit can the State of Alabama ever be made a defendant in any court of law or equity. This prohibition cannot be waived, and it cannot be avoided by suing a State agency when the substance and effect is a suit against the State. Alabama Girls' Industrial School v. Reynolds, 143 Ala. 579, 42 So. 114; Cox v. Board of Trustees University of Alabama, 161 Ala. 639, 49 So 814; State Docks Comm. v....
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