*1 OLIVER, Spence d/b/a Albert Pick
Motel, Plaintiff-Appellant, KING, K. John Commissioner of Revenue Leech, Attorney and William M. General Tennessee, for State of Defendants- Appellees.
Supreme Court Tennessee. March Rehearing Denied 1981. Majors, Knoxville, H.
Joe I. Walter Ste- Nashville, II, phenson, plaintiff-appel- for lant. Leech, Jr., Gen., Atty. M. Jim G.
William Nashville, Atty. Gen., Deputy Creecy, defendants-appellees.
OPINION disposes case The issue that of this appeal imposition of both the tax is whether engaging in the business of alco- holic at retail for premises pursuant the Retailers seq. imper- constitutes taxation. The Chancellor missible double held if double taxation on the that even case, same involved in this privilege was in- required had manifested and, impose tent such double taxation therefore, applicable to both taxes were plaintiff. We affirm.
I. Plaintiff, Oliver, Spence is the owner of Nashville, Motel located in Albert Pick business, plain- part As of his consump- tiff sells alcoholic to T.C.A. tion Pursuant 57-4-301. 1. Recodified as *2 57-157(a),2 plaintiff paid expressed an annual in 1947 the tax sales
§ that addition, $1,000 lege tax of to the In shall be in addition to all other taxes. State. 57-157(b)3, plaintiff to T.C.A. § caption to 1967 Plaintiff relies on the paid privilege (15%) percent tax of fifteen a Acts, reads, part, that in Public ch. gross beverages of the sales of the alcoholic Chapter amend 1 of Title “... An Act to Finally, pursuant sold. of regulate 57 ... to and control the sale seq., plaintiff paid also to the State the beverages consumption ... alcoholic ” (4½ of one-half sales tax four and premises; to taxes and fees ... . the %) gross 'percent proceeds of the derived Also, attention to the lan- plaintiff calls beverages. from the sale of alcoholic 57-157(b) that reads “In guage of T.C.A. § (a) privilege addition to the taxes levied in brought This suit was to recover the sales above, equal is further levied a tax to tax, there illegal imposed said to be because it a percent price the rate of fifteen of the sales liquor tax on privilege by the same as the ” argues legisla- .... Plaintiff that these Chancellor, the drink tax. Like the we expressions tive evince an intent the grave entertain the two taxes doubt imposed chapter taxes in Title consti- can to be said be double taxation. The “complete tute a scheme” of taxation on the by sales tax must be collected the retailer privilege engaging in consumer, of the business of from the “insofar as it can be done,” selling beverages consumption alcoholic 67-3020(d)], and it is a tax § [T.C.A. premises, on the to the exclusion of all upon privilege “selling, using the or con- other taxes. suming” tangible personal property. The
liquor by imposed the drink tax is a tax disagree. Legisla respectfully We expressly upon persons engaged in the busi- purpose tive intent and is to be ascertained selling ness of alcoholic for con- primarily ordinary from the natural and sumption used, meaning of the when read statute, in the context of the entire act or
However, assuming arguendo that
any
without
forced or subtle construction to
imposed by
double taxation is
these two
expend
limit or
the
of that
lan
sections,
code
the law is well established
guage.
Kroger Company,
Worrall v.
the Tennessee Constitution does not
(Tenn.1977); Metropolitan
S.W.2d 736
prohibit
Legislature
the
imposing
dou
Government of Nashville and Davidson
ble taxation
privilege
on the same taxable
Systems,
Motel
so long
Legislature
as it is
the
intend
(Tenn.1975).
Examined with that rule
ed that
Stalcup
City
result. See
of Gat
mind,
legislative expressions
in
the
in the
linburg,
(Tenn.1978);
Plaintiff has advanced several 57-157 is a tax on the § that seek to render li- inapplicable to the alcoholic quor by implication tax enacted in was (b)(1). 57-4-301(c). 57-4-301(a) 2. Recodified as T.C.A. 3. Recodified as T.C.A. repeal ORDER
intended gener- application previously enacted who engage al sales tax as to those this does not meet Petition Rehear particular privilege. requirements of Rule T.R.A.P. and is denied. Repeals by implication *3 be are not favored and there must an irrec HARBISON, J., COOPER, C. and repugnancy conflict or between oncilable DROWOTA, JJ., concur. BROCK and
the latter statute and the earlier statute work plain is and unavoidable to suspension g. an e. earlier statute. See Industries,
Reams v. Trostel Mechanical
(Tenn.1975); Zickler
v.
and
Company,
Union Bank
Trust
Tenn.
277,
(1900);
and Fisher v.
57 S.W.
Bal
FARMS,
DAIRY
MAYFIELD
dridge,
418,
91 Tenn.
tax it
said so.
could
As this Court
in International Har
stated
Carr,
244,
Company
vester
225 Tenn.
259-60,
(1971):
466 S.W.2d
it is
settled
revenue
“While
well
liberally
are to
construed in
be
strictly
con-
taxpayer
favor of
against
authority,
strued
MacFarland,
Corp.
Memphis Peabody
equally
it is
Tenn.
365 S.W.2d
of the lan-
clear that
effect,
guage
given
is to be
act
Telephone Co. v.
United Inter-Mountain
Moyers, 221 Tenn.
to tax
must not be thwarted
the strict con-
Products
struction rule.
Tennessee
&
See
Dickinson,
Corp.
Chemical
63,
BROCK, COOPER, C. HARBI- DROWOTA, JJ., SON and concur.