20 S.E.2d 421 | Ga. | 1942
Lead Opinion
1. Where a petition shows on its face that the suit is barred by a statute of limitations, in order for the defendant to raise the defense by demurrer, it must be specially invoked.
2. Where the Federal Government has imposed excise taxes on liquors, payable before any sale is legal, and the amounts of such taxes are paid by a wholesale dealer, either by his direct payment to the Government under arrangement with the manufacturer or by his payment to the manufacturer of an increased purchase-price, the amounts of these taxes constitute an element in the cost and value of the liquors so purchased by the dealer. Therefore a city may lawfully include these amounts in assessing the value of the liquors for ad valorem taxation; and such an inclusion is not a tax on Federal excise taxes. Accordingly, it was not error to dismiss the dealer's petition against the city to enjoin its collection of an ad valorem tax, which was alleged to be illegal because it included this element of value.
The plaintiff excepted to the dismissal of the action upon demurrer on the general grounds as stated, which made no reference to any statute of limitations. Although the petition attacked the assessment as invalid in that it included both State and United States taxes, an amendment limited the attack to United States taxes. The only specific ground assigning error on the dismissal was that "it was illegal for the city . . to assess as a part of the value of its property the amount of taxes plaintiff had paid to the United States Government upon its said property, and because it compelled plaintiff to pay an ad valorem tax upon the taxes it had already paid to the UnitedStates."
1. Even if a petition shows on its face that a suit is barred by the statute of limitations, so that the defendant might take advantage of the statute by demurrer expressly invoking such a defense, a general demurrer on the ground that no cause of action is stated can not be taken as sufficient to raise the defense of a bar by the statute.Sammons v. Nabers,
2. Under Federal laws existing in 1939, the tax year in question, prior to later statutes enlarging taxes, the excise or stamp taxes imposed by the Government on distilled and other liquors were payable before the liquors could legally pass into the hands of dealers or purchasers. 26 U.S. Code Ann. §§ 2800 (a, 1), 3030(3, b), 3150 (b). The State likewise requires such payment before distilled spirits can be taken from a State warehouse. Ga. L. Ex. Sess. 1937-38, pp. 103, 107; Code Supp. § 58-1015. Such taxes, even though they may in effect have been "passed on" ultimately to the purchaser, by an increase in the purchase-price covering the amount of tax, were an element of cost, first to the dealer and then to the purchaser, by this increased amount which each was required to pay. In determining the cost to the dealer, it is immaterial whether he or the manufacturer paid the stamp tax under the arrangement between them, since in either event the amount paid became part of the actual cost to the dealer. Since the City of Atlanta was authorized under its charter to levy and collect "an ad valorem tax on all . . personal property" (Ga. L. 1874, p. 122, § 25), which amount would ordinarily be based on the true market value in the usual course of trade (Code, § 92-4101; 26 Rawle C. L., § 323), and since in ascertaining such value every fact and circumstance bearing thereon should be considered (State ex rel. Guilbert v. Halliday,
3. Under the immediately preceding ruling, the court properly dismissed the action on general demurrer.
Judgment affirmed. All the Justices concur.
Addendum
Plaintiff in error moves for a rehearing on the contention now made that its petition, attacking the validity of the city's ad valorem tax assessment on liquors, had alleged that these liquors were still in a government warehouse, and that the United States taxes on the liquors were not due until the liquors were sold. Under this contention, movant now insists that the court erred in holding in effect that "the internal revenue tax prescribed by the law of the United States and required to be paid under such laws before the liquor is removed therefrom should be *858 added to the value of the liquor, even though the tax had not been paid;" and erred in holding that the city, in fixing the value of movant's liquors for taxation, could add unpaid Federal taxes to the cost price as an element of value.
The question now raised can not be considered, since the record fails to support movant's contention that such a question has been raised either in the trial court or in this court. "Where pleadings are ambiguous or couched in alternative expressions, on demurrer they will be given that construction which is most unfavorable to the pleader;" so that, if "two matters are pleaded in the disjunctive, one of which is good and the other not, the petition is to be treated as pleading no more than the latter," and if "any one of several averments alleged in the alternative is insufficient to state a cause of action, the entire pleading is bad and subject to general demurrer." Doyal
v. Russell,
The bill of exceptions and the brief of the movant also negative its present contention as to non-payment of the Federal taxes. The assignments of error contain the specific ground, that "it was illegal for the City of Atlanta . . to assess as a part of the value of its property the amount of taxes plaintiff haspaid to the United States Government upon its property, and because it compelled plaintiff to pay an ad valorem tax upon the taxes it had already paid to the United States." The brief for the movant also attacks the validity of the city's assessment because it required the payment of "ad valorem taxes upon the amount of the excise taxes which it had already paid to theUnited States Government and the State of Georgia."