*1 THYER MANUFACTURING DRAKE v. 38566. CORPORATION. Rehearing denied 16,
Decided November December
P. plaintiff Walter Robert Drake, in error. Jones, B. Perry, Joseph Powell, Walters contra. Langstaff, Jr., Eugene Ben Robert Cook, W. Attorney-General, Johnson, Goodman, Deputy General, Assistant amici Attorneys curiae. Judge. Thyer Corp. sued Manufacturing Chief The
Felton, M. Drake, Co., Drake recover G. Construction d/b/a $7,806.40, amount of use tax Georgia, Department State of in connection Revenue, plaintiff’s failure first instance to tangible personal from the defendant property sales of made on defendant, being said to the period The 1954, through from January January 9, 1957. The defendant filed a nonresident of State. general petition demurrer to the overruled. de- owing fendant in which also filed answer denied amount part set up sued for and sums sued for years. statute of limitation trial of four sitting stipula- without on a written judge, jury, heard the case tion of facts and rendered in favor of stipulation sued for. of facts shows three Georgia by to1 State of August one checks, July 25, 1958, one dated dated 14, 1958, September other dated action was filed January 15, appeal ruling this court 1960. On reversed general ground demurrer on petition did not af firmatively show Use complied plaintiff. were On certiorari Thyer Manufacturing Court in Corp. Drake, 117 Ga. 136), reversed the *2 of court and this plaintiff’s the petition held that subject general not was to de the murrer case and returned for this court further action to give effect the that gravamen decision of court. The the of Supreme ruling Court it is not plain necessary for the tiff to show with the Act in an Sales and Use ticipation possible by prior defense defendant. The judgment of court the judgment this is vacated of the Su preme judgment Court which affirmed of the trial court over general ruling the defendant’s demurrer made the of this court. The Supreme Court nullifying effect of ruling ques this court. theOn tion whether the is entitled to where the plaintiff recover pays the tax involved to State before the defendant suing appeared stipulation where it under the fact that the plaintiff required collect the did 92-3405a, Code Arm. § nor file any by Code Ann. 92-3424a, ruling Court made now incumbent that question, together to decide the questions whether part sum sued for is barred statute of limitation years, of four estopped and whether collect from ing amount the defendant by sued from reason fact agent stipulated that plaintiff, negotiating sales involved with defendant, advised the defendant plaintiff company had advised him that its Tax Act Sales and in the Use sales to the de there fendant would not be tax required paid the plaintiff or the defendant. part
No amount for is sued statute of limitation. the tax involved the State the date filing within four from the present action. Since had no cause of action for the part the purchase price, under law until it plaintiff’s cause of action State, recover 22 the tax plaintiff paid arise until did
to the State. sued collect the amount estopped to duty makes it the 3, the law be shown in Division As will
for. tax involved pay the plaintiff, the defendant, as well as the use tax was due. upon which in the transactions opinion of rely party Neither had from interpreted. deviation Any how the law should as to the risk of be made at the law must true demands of law or Misrepresentations of the deviation. party making a cause form generally cannot the basis matters of law relationship the absence confidential of a action or defense in Dougherty Ga. County, parties. Williams between (113 168) cited; Fields v. Fire Cas. cases & App. SE2d 540) cases App. Conn., Ga. Ins. Co. cited. interpre- the correct principal problem *3 the acts of the General provision of the of
tation which reads in Code 92-3404a to and codified ferred (8), § “ person every who also means and includes as follows: 'Dealer’ representatives byor the distribution either business solicits thereof matter reason catalogs advertising or other and accepts from consumers and orders State deceives imposed by collect the tax Georgia, such dealer shall and in law or Chapter purchaser and from no provided by the terms of equity or transaction as on sale it any such Chapter maybe in this had State unless Chapter of this be shown affirmatively complied with.” been fully spirit construing enactment should be statute,
In there- construction should be in accordance considered and meaning are not controlled the literal and with; courts spirit intention of language of the statute. of the 613, 615, prevails Statutes, letter. 82 C.J.S. over law § resulting and conse- Constructions in unreasonableness absurd Statutes, 623, C.J.S. quences be avoided. 82 should import literal over of words. legislative prevails intent legislation for purpose is the criterion general scheme and Carroll v. 192 Ga. Ragsdale, thereof. proper
23
(15
Heery,
(187
210); Gazan v.
118
SE2d
Georgia. It most unreasonable to that mere failure say seems a report preclude to the the sale will to recover the tax when sought the payment, by the end, namely law, has been in fact It that say recovery unreasonable to of the tax made. is also no paid tax at the could be had because the time the sale. It that act seems clear the exclude the idea the time always payable tax is at the the sale. paid time If is the sale no 92-3415a. question can be can arise to whether it recovered or not. Even make basis of to returns a cash dealer who has elected
a report all sales is not collections of credit accounting credit have payments been made until the on such However, report period. a a collection reporting failure to pur- made the question act. The defendant act violates as a dealer and a consumer. for the both tax, chaser liable effort to comply the defendant also made interpretation The no returns and no tax. since the act relieves placed the dissenters defendant obligation tax but even only consequence purchase is defendant price. ironical the fortui- obligation solely by tax of his relieved pro- Commissioner chose tous circumstance Revenue proceeding against against instead of ceed done under defendant, which Commissioner could the dissenters’ Under provisions of act. late a a of a filing day the effect day foreclosing an action would have late purchase price. Examples incon- the entire seller to collect gruous consequences failure minor re- some quirement multiplied. law could The General result that produce only wit, intended mattered, belatedly, that tax paid, when exhibition of bad faith essential good re- faith or The kernel of the met. quirement of law is completely quirement regarded 'fulfilled to be lead to Any tax. unintended untold all unreasonable and results and kinds of legislature injustices. simple intention of was that compliance, will to full to the State for the finding the court did err in for. amount sued the trial overruling defendant’s trying court,
demurrer is trial affirmed. correct jury, without affirmed. the case Judgments Carlisle, Hall, Eberhardt J., Bell, P. affirmed. JJ., Nichols, Frankum J., JJ., concur. P. Custer, Jordan, dissent. dissenting. Presiding Judge, While
Nichols, *5 held case, certiorari in this the writ of Court, grant after the plain- and that the cause action forth petition set a that the hold defense, did negative possible tiff not have to did language of this court on placed (Ga. L. and Use in General amended, toas as p. 92-34a), Ch. Code Ann. act complied with such fully have necessity of error. was against the defendant be had recovery before could stipulated stipulated facts it was upon When tried Ann. required by Code plaintiff did not the tax as file nor did it 92-3405a, § the tax Accordingly, the mere unless 92-3424a. with full
exonerated the and is deemed a plaintiff did show a requirements recover. not entitled to compliance, and does not position opinion The majority takes interpretation permitted, says. mean what it plainly No unambiguous. plain statute indulged when in, should be act dealt division section of the with the third law or action either in opinion plainly states: “No majority provided by the of this equity on transaction as terms a sale or it be chapter such dealer unless by any may be had chapter affirmatively shown complied been with.” fully that an majority opinion contended support brought permits an to be refused failed
amount of tax when in- legislative the act timely with terms of was the purpose of tent. Such contention is untenable. timely the tax but a collection of only the collection of placed “dealer” obligation
tax. The tax is to collect (the case), fails present law and he upon the tax still responsiblity tax the collect such taxpayer. against him may proceed him and the State 230). Inc., 214 Ga. 240 Williams v. Bear’s Den, option collecting opinion gives majority competitors percent than at less selling the tax or three knowledge that should margin profit can future date to him some State force proceed against within purchaser four been he has the tax money. forced to a reimbursement of obtain such holding effectively timely Such hinder a collection of not, the State majority, contended aid *6 What “Timely collection of such tax. incentive is there to tax,” act, otherwise comply or with the if the dealer may he wait knows until State forces him tax and then, belatedly purchaser after sue paying and paid? cover the contrary, all None. On if the dealer he has “timely” collect, report must knows taxes on sales or from thereafter suing purchaser the same such dealer real incentive with comply fully has a thé act. amended, limitation, the statute in so removes
far where State concerned, fraudulent or false (see or 92-3447a), no return is filed dealer Code Ann. § proceed against twenty should the dealer or more years after has failed report to collect the tax make any or twenty-four then, could sale, sue more purchaser. The provide such procedure act does not but contrary provides dealer must fully proceed the terms of against or forfeit its purchaser.
The majority opinion amending has effect of words “fully complied with” section action precluding dealers compliance where full been shown “tax read has paid.” been prerequisite tax is not the a full with the act but is. (Ga. pp. L. provides 92-3421a), report “cash” may basis”, dealers on a on an “accrual reports and where a dealer aon cash basis the required purchase credit price is not until the sale report during collected, on the cash sales but made period price the purchase such and on collected such period on credit theretofore made. However, reports together accrual basis period during which the report must made for the regardless purchase price sale tax are of when collected. unauthorized the trial be reversed.
evidence should Jordan Judges Frankum say I am authorized in this dissent. concur THE STATE. FAIRBANKS v.
Decided December