Williams v. Bear's Den, Inc.

• Decision Date: 05 June 1958
• Docket Number: No. 20066,20066
• Citation: 104 S.E.2d 230,214 Ga. 240
• Parties: , 2 A.F.T.R.2d 5146, 58-2 USTC P 9730 T. V. WILLIAMS, State Revenue Commissioner, v. BEAR'S DEN, INC.
• Court: Georgia Supreme Court

Page 230

104 S.E.2d 230

214 Ga. 240, 2 A.F.T.R.2d 5146, 58-2

USTC P 9730

T. V. WILLIAMS, State Revenue Commissioner, v. BEAR'S DEN, INC.

No. 20066.

Supreme Court of Georgia.

June 5, 1958.

Syllabus by the Court

Under the provisions of the Sales Tax Act of 1951 (Ga.L.1951, p. 360) a dealer is accountable to the State as a taxpayer for the sales tax collected by him from his customers. The Couurt of Appeals erred in holding that he was only an agent of the State and liable only for the failure to use due care and diligence while holding the taxes so collected.

Eugene Cook, Atty. Gen., Ben F. Johnson, Jr., Asst. Atty. Gen., Hugh Gibert, Deputy Asst. Atty. Gen., for plaintiff in error.

Denmark Groover, Jr., Bloch, Hall, Groover & Hawkins, Macon, for defendant in error.

ALMAND, Justice.

Williams, State Revenue Commissioner, pursuant to Sec. 19 of the Act of 1951 (Ga.L.1951 p. 360; Code, Ann., § 92-3434a) issued a fi. fa. against Bear's Den Inc., in the principal sum of $427.91, with interest and penalty, under an assessment against the defendant in fi. fa. on account of sales taxes due by it to the State of Georgia. To this execution and a levy thereunder the defendant in fi. fa. filed its affidavit of illegality, in which it was asserted that it had collected the taxes claimed on behalf of the State 'and while holding the same for the State and while in the exercise of due diligence and care on his part the same was stolen from his premises without fault on his part'. The motion of the Commissioner to dismiss the affidavit of illegality on the ground that it set forth no adequate defense was sustained and on writ of error to the Court of Appeals this judgment was reversed (97 Ga.App. 288, 102 S.E.2d 915), the court holding that under the Retailers and Consumers Sales and Use Tax Act of 1951 (Ga.L. 1951, p. 360) the defendant in fi. fa., a dealer, was bound to exercise only ordinary diligence in safeguarding and remitting the sales tax collected by him as an agent of the State. We granted the Commissioner's application for the writ of certiorari.

The narrow and controlling question for decision is: Where a retail dealer has collected the tax from his customers under the Sales Tax Act of 1951, is his duty or obligation to the State that of an agent, liable only for the use of ordinary care in the safeguarding and remittance of such taxes or is he liable as a taxpayer? In other words is the tax levied, under the statute, upon the dealer or against the customer?

The ruling of the Court of Appeals is based solely on the language employed in Sec. 12(a) of the act which reads as follows: 'The privilege tax herein levied, measured by retail sales shall be collected by the dealer from the purchaser or consumer. Notwithstanding any other provision, it is the purpose and intent of this Chapter that the tax imposed hereunder is, in fact, a levy on the purchaser or consumer of the tangible personal property or services described in this Chapter, and the levy on dealers as specified is merely as agent of the State for collection of said tax.' Code, § 92-3414a.

The Revenue Commissioner insists that, under the general and specific terms of the Sales Tax Act, the retail dealer is the tax-payer and that the provision of Sec. 12(a), quoted above is merely descriptive of the dealer's relationship to the customer and can be reconciled with other sections of the Act which in specific terms levy the tax against the dealer.

In the construction of a statute the legislative intent must be determined from a consideration of it as a whole. City of Macon v. Georgia Power Co., 171 Ga. 40(3), 155 S.E. 34. The construction of language and words used in one part of the statute must be in the light of the legislative intent as found in the statute as a whole. In re Kilby Bank, 23 Pick. 93, 40 Mass. 93. Where there is an apparent conflict between different sections of the same statute, the duty of a court is to reconcile them, if possible so as to make them consistent and harmonious with one another. Cason v. Harn, 161 Ga. 366, 131 S.E. 88. If they cannot be so reconciled the one which best conforms to the legislative intent must stand. State ex rel. Mitman v. Board of Commissioners, 94 Ohio St. 296, 113 N.E. 831. Where a particular expression in one part of a statute is not so extensive or large in its import as other expressions in the same statute, it must yield to the larger and more extensive expression, where the latter embodies the real intent of the legislature. Torrance v. McDougald, 12 Ga. 526. See 2 Sutherland, Statutory Construction, 3rd Ed. Sec. 4703, 04.

With these rules of construction in mind we now examine the Sales Tax Act as a whole. Section 2 levies and imposes 'a privilege or license tax upon every person who...