W. F. Jensen Candy Co. v. State Tax Commission

• Decision Date: 20 October 1936
• Docket Number: 5783
• Citation: 90 Utah 359,61 P.2d 629
• Court: Utah Supreme Court
• Parties: W. F. JENSEN CANDY CO. v. STATE TAX COMMISSION

61 P.2d 629

90 Utah 359

W. F. JENSEN CANDY CO. v. STATE TAX COMMISSION

No. 5783

Supreme Court of Utah

October 20, 1936

Original proceeding by the W. F. Jensen Candy Company against the State Tax Commission of Utah to review an order of the State Tax Commission.

ORDER AFFIRMED, and cause remanded to the State Tax Commission.

Leon Fonnesbeck, of Logan, for plaintiff.

Ned Warnock, of Salt Lake City, for defendant.

MOFFAT Justice. ELIAS HANSEN, C. J., and FOLLAND and EPHRAIM HANSON JJ., WOLFE, Justice, concurring.

OPINION

MOFFAT, Justice.

In this case the taxpayer, herein designated as plaintiff, filed a sales tax return with the state tax commission for the month of July, 1935, showing total sales in the sum of $ 1,818 and claiming an exemption of $ 1,527.10; and for the month of August, 1935, its return showed sales totaling $ 1,798 and claimed exemptions of $ 1,528.52. The amount claimed to be exempt for the two periods reported represented an accumulation of sales of merchandise, the items making up such amounts being the total of sales where the amount involved in the sale was less than 50 cents for each sale. No bad faith or intentional failure to punctually remit to the tax commission is involved. Plaintiff earnestly presents a question of law.

The plaintiff operates a confectionery at Logan City, Utah, and the agreed statement of facts admits that most of the sales made by it are in amounts less than 50 cents, and a large proportion of those are below 25 cents, with many of them being 5, 10, and 15-cent sales. Plaintiff has classified its sales according to amounts and calculated the percentages of its small sales indicating that 30 per cent of its sales are represented by 5-cent sales, 10 per cent by 15-cent sales, 15 per cent by 20-cent sales, 11 per cent by 25-cent sales, etc. It is clear that a large percentage of plaintiff's business is represented by these small sales of less than 50 cents.

Plaintiff paid the sales tax on all sales made in amounts of 50 cents and over and the total amount actually collected for the periods reported. The tax commission, upon the returns made by plaintiff, reassessed the taxes on the basis of 2 per cent. on the total or aggregate of the sales made, and demanded a deficiency with penalty and interest. Plaintiff, feeling aggrieved, applied for a hearing before the commission for correction of the amount assessed. At the hearing the facts were admitted and the commission rendered its decision applying the 2 per cent. tax to the total sales reported, including those below 50 cents.

Upon the foregoing record the plaintiff applied for and obtained a writ of review from this court. In argument the question has been both subdivided and consolidated. The matter calling for decision involves the construction of the statute. Without subdivision, the question submitted by plaintiff is, whether a "vendor" can collect a tax on sales made by him when the sale is in an amount less than 50 cents.

Counsel for defendant suggests there are three questions of law involved in the principal question presented by plaintiff and argued, though not subdivided, and submits them as follows:

(1) "Can this plaintiff question the validity of the tax, because the tax levied is not uniform or equal?" (2) "Is the sales tax act violative of section 3 of article 13 of the Constitution of the State of Utah, as amended in 1930 because its operation is not uniform or equal?" (3) "Was it the intention of the Legislature to levy a tax on sales which involved [a tax collection of] fractional parts of a cent?"

Put otherwise, questions (1) and (2) are: Is the tax and its operation uniform and equal? This question must be answered in the affirmative. The sales tax is not a tax upon property. There is no question of classification involved. The tax levy is uniform. It affects every sale alike. We do not have that difficult problem here to determine where classification goes to the extent of violating uniformity rules or of depriving one of the equal protection of the law. For an exhaustive discussion of these principles, if interested, the reader is referred to both the prevailing and dissenting opinions in the case of Stewart Dry Goods Co. v. Lewis, 287 U.S. 9, 53 S.Ct. 68, 77 L.Ed. 135.

The Sales Tax Act imposes the tax on the transaction. The amount of consideration involved in the sale or transaction (a sale always involves a purchase) is the measure to which the rate is applied. Unless otherwise indicated, the statutory references are to the Emergency Revenue Act of 1933, c. 63, as amended by chapter 20, Second Special Session Laws of Utah 1933, and chapters 91 and 92, Laws of Utah 1935. The statute provides:

"* * * there is hereby levied and there shall be collected and paid:

"(a) A tax upon every retail sale of tangible personal property made within the state of Utah equivalent to two (2) per cent of the purchase price paid or charged. * * *". Section 4, as amended by chapter 20, Second Special Session Laws of Utah 1933.

The vendor or the person receiving the payment or consideration upon a sale is charged under the law with the responsibility of collecting or accounting to the State for the tax imposed. Section 5, Id. This latter section also provides:

"The vendor may, if he sees fit, collect the tax from the vendee, but in no case shall he collect as tax an amount (without regard to fractional parts of one cent) in excess of the tax computed at the rates prescribed by this act."

This is the sentence, particularly the parenthetical part of it, that provoked the differences between the parties. Plaintiff argues the parenthetical phrase, in effect, eliminates the tax on sales involving fractional parts of 50 cents; defendant argues that the vendor is required to pay all he collects, and, whether or not he collects, to pay the rate of tax imposed upon the aggregate amount of sales involved. That the tax is levied upon the transaction by the statute defined as a "sale" (section 2, Id.), has been heretofore decided by this court. State Tax Commission v. City of Logan 88 Utah 406, 54 P.2d 1197, 1202.

Counsel for defendant suggests that the question arises in this case because of the decisions heretofore rendered by this court in the cases of Western Leather & Finding Co. v. State Tax Commission, 87 Utah 227, 48 P.2d 526, and State Tax Commission v. City of Logan, supra. The question in the former case was whether the sales described were wholesale or retail sales, and whether or not there was an attempted transfer of legislative authority to levy taxes and designate the persons who should be required to pay the tax, and also discussed the statutory definitions of "Wholesaler," "retailer," and "consumer." Unless it be maintained that the question of who should pay the tax is involved in the instant case, we find nothing in the Western Leather & Finding Company Case touching the issues in this case.

The statute, section 2(e), Id., defines "retailer" and "retail sale" as follows:

"The term 'retailer' means a person doing a regularly organized retail business in tangible personal property, known to the trade and public as such and selling only to the user or consumer and not for resale. 'Retail sale' includes all sales made within the state of tangible personal property except wholesale sales."

In the case before us it is admitted that the sales are retail sales within the statute. There is a statement in the Logan City Case, supra, that refers to the matter here presented. It is there said:

"It is argued that the city cannot collect a sales tax from a consumer who purchases electricity for a fractional part of 50 cents; that is to say, if the bill of any consumer is, say, 49 cents, no tax can be collected thereon, and likewise, if electrical energy in any given month is sold to a consumer in the amount of $ 1.25, a sales tax of only 2 cents is collectible thereon, and therefore if the city is required to pay 2 per cent of its total sale it will be required to pay a substantial part of the tax out of its own funds."

Except for the subject-matter of the sale, the foregoing question is the question now before us. In that case the court further said:

"Assuming, without deciding, that a vendor may not collect a sales tax on the fractional part of a 50 cent sale, still we doubt the soundness of the argument that the city may not readily devise means of passing the tax on to the consumer."

We may no longer "assume" that the vendor may or may not collect a sales tax on a sale involving a fractional part of 50 cents, or where the amount of the tax on a particular sale involves the collection of a fractional part of 1 cent. The law must now be declared. The law declares that there is levied and shall be collected and paid, as to sales involved in this case, a tax of 2 per cent of the consideration upon every retail sale of tangible personal property. Section 4 (a), Id. The language of the statute is clear and unambiguous and must be given effect. No exemption is provided for sales where the gross amount is less than 50 cents or where the sale involving more than 50 cents fails to express its consideration in even units of 50 cents or dollars. There being no exemptions, the rate of 2 per cent. of the consideration paid or charged attaches to every sale. If the sale is a 10-cent sale, there is due to the state a tax of one-fifth of a cent. That no coins or currency of that particular denomination, or other fractional medium of exchange, are immediately available is not a matter the court may consider in determining the validity of the law. It may present a practical difficulty, but not an insurmountable one. Tokens, stamps, debit or credit balances between vendor and vendee, over and short...