166 P.2d 952 | Wyo. | 1946
The facts are substantially as follows: The plaintiff, Creamery Package Manufacturing Company, is an Illinois corporation, with headquarters in Chicago, Illinois. It has a branch office and a warehouse in Denver, Colorado, and the office in that state takes care of the sales of the plaintiff in Colorado, Wyoming, Utah, New Mexico, part of Nevada and part of Texas. It has a so-called statutory agent upon whom process may be served in case of a suit against the plaintiff. That appointment was made in connection with the so-called domestication of the plaintiff corporation in this State, and the reason for that appointment is mentioned in the case of Creamery Package Manufacturing Company vs. Cheyenne Ice Cream Company,
The Trial Court held that the plaintiff is subject to the payment of the tax assessed against it by the State Board of Equalization, and from the judgment entered in that case, the plaintiff has appealed to this Court. The contentions made in this Court by the State Board of Equalization are: First, that the sales in question were not sales in interstate commerce and are taxable under the Wyoming Sales Tax Act; and second, that *273 the plaintiff is required to collect the use tax upon sales made by it which are subject to the provisions of the Use Tax Act. While the assessment herein made does not disclose whether it was for a sales tax or a use tax or for both, counsel for the State Board of Equalization claim that the tax for any machinery installed is a sales tax, and the remainder of the taxes are use taxes. We might say, in passing, that if their contention as herein made, is correct that the plaintiff had a business office in this State, and in fact was doing business in this State, so that the Berwind-White case hereafter cited is controlling, as counsel claim, there seems to be no reason why all the taxes herein may not be called sales taxes as in the Berwind-White case, or vice-versa, why they may not all be called use taxes, as the tax in the West Publishing Company case, hereafter cited, was called.
I.
It is stated in 20 C.J.S. 51, dealing with the subject as to what constitutes doing business in the State, as follows: "A foreign corporation is not doing, carrying on, transacting, or engaging in business in state, within the meaning of the statutes under consideration, by merely appointing an agent for the transaction of future business therein". In Commonwealth vs. Chattanooga Implement Manufacturing Co.,The statutes which require foreign corporations to domesticate in this State are designed in the main to protect residents of the State in their local transactions with the corporations in this State, particularly to make them subject to the service of process in this State. Verdigris River Land Company vs. Stanfield,
II.
Defendant claims that the fact that the plaintiff sent an engineer into this State for the purpose of supervising installation of the equipment herein above mentioned is a circumstance showing that the plaintiff is doing business in this State so as to subject it to the imposition of taxes and the duties in connection therewith. We held in the case of Creamery Package Manufacturing Company vs. Cheyenne Ice Cream Company, supra, that the supervision of such installation is merely incidental to interstate commerce, and does not constitute doing business in this State. A later note on that subject is found in 146 A.L.R. 947, where it is stated: "Later cases recognize that where assembly or installation of an article shipped by a foreign corporation into a state pursuant to an order solicited by its agent constitutes a necessary act in the preparation thereof for usefulness to the customer, and so an inherent part of an interstate transaction, agreeing to perform or performance of such acts does not require the seller to conform to state statutes imposing conditions for doing business, or make the transaction intrastate in character". The note, in addition to our case above mentioned, also cites: Mandel Bros v. Henry A. O'Neil, Inc. (1934; CCA 8th) 69 F 2d 452; Weber Showcase Fixture Co. v. Co-Ed Shop (1936)III. SALES TAX.
We have heretofore considered the question of sales taxes in Blind Bull Coal Co. vs. State Board of Equalization,The case of United Autographic Register Company vs. McGoldrick,
All of the foregoing cases heretofore mentioned are accordingly distinguishable from the case at bar, and *279
so we must proceed to consider later cases which seem to be controlling herein. In the case of McLeod, Commissioner of Revenues vs. J.E. Dilworth Co.,
"Appellee, J.E. Dilworth Company, is a corporation organized under the laws of Tennessee, with its home office and place of business in Memphis, Tennessee. It is not qualified to do business in Arkansas, and has no sales office, branch plant, or other place of business in this State. Orders for its machinery and mill supplies are procured in Arkansas by two traveling representatives (both domiciled in Memphis). The orders are subject to the approval of the home office. When the order is approved in Memphis, the merchandise is shipped f.o.b. Memphis, title to the merchandise being relinquished upon delivery to the common carrier. The traveling representatives do not collect any money. Appellee also receives orders by mail and telephone from Arkansas customers, which orders are accepted in Tennessee, and merchandise delivered to a common carrier in Tennessee with no title retained. Appellee is engaged in the general interstate business. Arkansas customers sometimes go to the office of the company in Memphis and buy goods direct, loading the same on the purchaser's truck and bringing the merchandise back to Arkansas".
It may be noticed that the facts in that case were substantially like those in the case at bar. The differences are too slight to be considered. The Supreme Court of Arkansas held that no sales tax could be assessed against the Dilworth Company and distinguished the Berwind-White case and other cases theretofore decided by the Supreme Court of the United States. The case was carried to the Supreme Court of the United States and was decided by that Court on May 15, 1944, (
As already stated, about twice a year the plaintiff was accustomed to sell machinery in this State, to be installed, which was shipped F.O.B. railroad cars to some station in Wyoming, unless perhaps, the machinery was paid for in cash. The assessment made in this case, either by the trial court or the State Board of Equalization, does not disclose whether or not items for such sales were included therein. The assessment shows total sales, exempt sales, and taxable sales, all in bulk, without indicating which were taxable and which were exempt. The testimony on the point already heretofore set out, is, at best, obscure. The witness Ziser was unable to tell whether any such items were included. He stated finally that it was "probable" that some were included, but whether these were items on which the cash was paid, — in which event, as he stated, the title passed at that time — does not appear. The whole point is left too uncertain in the record. For aught we know, it may be academic, and so we do not express any opinion as to whether or not a sales tax would be assessable on such items. In the present state of fluctuating authorities, it does not behove the court to pass upon questions involving interstate commerce, unless we definitely know that we have no merely academic question before us. Parenthetically, we may add this: It was argued in open court before us that our decision herein would automatically dispose of the other causes of action herein. We are unable to see that in view of the light we have on the subject at present. Counsel for both sides, in submitting this case only partially, have, *281 perhaps, not sufficiently considered the interrelation between sales and use taxes as applicable in this case. The co-plaintiffs of Creamery Package Manufacturing Company pleaded and claimed that the goods which they bought from the Creamery Package Manufacturing Company are exempt from taxation because not generally stocked in and readily obtainable in the State, and hence, exempt from taxation under Sec. 4 (k) of the Use Tax Act. While these pleadings are not directly before us, yet the same claim is called to our attention by the pleadings of the Creamery Package Manufacturing Company, compelling us to be cautious not to prejudge the point, if that can be avoided, as to the co-plaintiffs of the Creamery Package Manufacturing Company who are the real parties in interest, and who are not before us. It goes without saying that it would at least be advisable when we are called upon to interpret perhaps inharmonious provisions of the statute that the parties directly interested should be before the court. So, unless the claim of exemption is abandoned, of which there is no evidence as to the co-plaintiffs of the Creamery Package Manufacturing Company, one of the main questions that ought to be determined first is as to whether or not that exemption is applicable herein. By calling the tax here considered a sales tax and holding it so, and imposing liability therefore on the seller, would seem to nullify at the option of the seller the benefit of the exemption under the use tax in favor of the purchaser, if such exemption in fact exists, for under Sec. 4 (e) Chapter 102 Session Laws of 1937 — the Sales Tax Act — the tax "shall be a debt from the consumer or user to retailer until paid". Hence, it is clear that the contention that the transactions here considered come within the Sales Tax Act, even if true, takes only a partial view of the point involved and leaves the substance untouched. The real question is, even if the tax involved is a sales tax, whether *282 or not it is also at the same time a use tax, exemption from which can be claimed by the purchasers; further, if the provisions of the Sales Tax Act and the Use Tax Act are, as applied to such a case, inconsistent, whether or not they can be harmonized, and if not, which provision should control. None of these points have been argued or are before us. By assessing the tax here considered, against the Creamery Package Manufacturing Company, if any such in fact was assessed, the State Board of Equalization attempted, perhaps, to evade the foregoing questions — the real issue — in this case.
IV. USE TAX.
It is contended herein, that the plaintiff, Creamery Package Manufacturing Company, notwithstanding that it is a foreign corporation, is a retailer in this State, maintaining a place of business therein, and since it made sales "of tangible personal property for storage, use or other consumption in this state," it can be made to act as a compulsory agent for the collection of use taxes, within the contemplation of Sec. 6 of the Use Tax Law, being Chapter 118 Session Laws 1937. We have already shown that it does not maintain a business office in this State, and the West Publishing Company case, heretofore cited, is not, accordingly in point herein.In State Tax Commission vs. General Trading Company,
233 Iowa 877 ,10 N.W.2d 659 , an assessment of a use tax was upheld. In that case it appears that the defendant, General Trading Company, not qualified to do business in Iowa, and doing purely interstate business, did not maintain any office, distribution house, sales house, warehouse or any other place of business, or any agent located in Iowa through which or whom it sold tangible personal property to persons in Iowa. From time to time the defendant sent traveling salesmen *283 from Minnesota into Iowa, none of whom lived in Iowa or had headquarters in Iowa. These traveling salesmen solicited orders for merchandise in Iowa, which orders were subject to acceptance or rejection at defendant's office in Minnesota. The salesmen were not authorized to make and did not make any contracts in Iowa. In filling such orders as were accepted at the office in Minnesota the merchandise was shipped from Minnesota to Iowa, by delivery to common carriers or by delivery to U.S. postal departments. The purchasers paid all costs of transportation by carrier or parcel post.
It appears, accordingly, that the facts in that case were substantially the same as the facts appearing in the J.E. Dilworth Company case above mentioned. The Court held that under the laws of Iowa the General Trading Company was a retailer maintaining a place of business in Iowa, and that as such it was subject to the use tax. It appears that the company voluntarily subjected itself to the jurisdiction of the Court as also was the case in the J.E. Dilworth Company case above mentioned. The case was carried to the Supreme Court of the United States, General Trading Company vs. State Tax Commission of Iowa,
"`Retailer' means and includes every person engaged in the business of making sales for storage, use or other consumption or in the business of making sales at auction of tangible personal property owned by such person or others for storage, use or other consumption; provided, however, that when in the opinion of the Board it is necessary for the efficient administration of this Act to regard any salesmen, representatives, peddlers or canvassers as the agents of the dealers, distributors, supervisors or employers under whom they *285 operate or from whom they obtain the tangible personal property sold by them, irrespective of whether they are making sales on their own behalf or on behalf of such dealers, distributors, supervisors or employers, the Board may so regard them and may regard the dealers, distributors, supervisors or employers as retailers for purposes of this Act".
The scope and full meaning of Sec. 2 (f), above quoted, is not clear. We hardly know what to make of the term "peddlers". The State Board of Equalization may, it seems, regard an agent in this State as being an alterego or identity of the employers, dealer or distributor. The provisions by their terms do not state that the employer or distributor must be one located in this State, but Sec. 6 providing that only a retailer who has a place of business in this State is liable for the use tax distinctly limits the application of the terms employer, dealer and distributor. Counsel for the State Board of Equalization ask that we construe the foregoing provisions liberally. In other words, they would eliminate from the statute the provision that the retailer must have a place of business in this State, and they would have us do so because the Supreme Court of the United States has, since our Use Tax Act has been passed, been more liberal than formerly in interpreting what does and what does not interfere with interstate commerce. But, of course, our legislature is still supreme within its proper sphere, and its language, if within constitutional boundaries, cannot be struck out, modified or changed by anything said by the United States Supreme Court. So someone must have a place of business within the State, in order that a compulsory collector of the use tax can come into existence. Construing the provisions of Sec. 2 and Sec. 6 together, they would, perhaps, mean as applied to a case like that at bar, that if either the employer or the agent maintains a place of business in this State liability under the tax ensues. That would perhaps bring the provisions within the spirit of the *286 Berwind-White and other like cases, but they do not seem to reach the case at bar. The Iowa law, Sec. 6943, 102, Code of Iowa, 1939, contains the provisions of Sec. 2 (f), Chap. 118, supra, but in addition to that contains a specific provision defining the term "`Retailer maintaining a place of business in this State'." That provision as abbreviated by the Supreme Court of Iowa, in the case above mentioned, is as follows: "a `retailer maintaining a place of business in this state' shall include `any retailer having * * * within this state * * * any agent operating within this state under the authority of the retailer * * * irrespective of whether such * * * agent is located here permanently or temporarily, or whether such retailer * * * is admitted to do business within this state". That provision is broad. We have nothing like it in this State. We are unable to see how we can give Sec. 2 (j) that meaning, nor do we see how we can go beyond the cases from Iowa, far as those cases already go. Under present legislation in this State we cannot, accordingly, adopt the rule of these cases. We do not, of course, in order not to be misunderstood, say that if this State should adopt the legislative provision in Iowa, last above mentioned, that that necessarily would make the rule of the Supreme Court of Iowa, and of the Supreme Court of the United States applicable. As already stated, the General Trading Company appeared voluntarily in the case, and we express no opinion as to what would be the result if a corporation should not appear voluntarily, or have a statutory agent within this State upon whom process in the state might be served. See discussion on that point in State Tax Com. vs. General Trading Company, supra. We think, in short, that we are not warranted in holding that the plaintiff in this case has a place of business in this State, when in fact it has none, or that it can be compelled under present authorities to become *287 an agent of this State in collecting the use tax involved herein. It is, therefore, not liable for any.
The judgment of the District Court, accordingly, will be reversed with directions for further proceedings, if any, not inconsistent with this opinion.
RINER, J., and KIMBALL, J., concur. *288