*1 June 28, A. No. 16757. In Bank. [L. 1939.] MAHONEY, Re THE PEOPLE, Appellant, PAUL spondent. *2 for Respondent.
Maurice J. Hindin Wyckoff, & Wyckoff, Gardner Parker and Hubert Jr., as Curiae, Respondent. Amici on Behalf of SHENK, appeal by J. This inan the from judgment on a directed in verdict favor of the alleged delinquent an action to sales recover taxes. complaint alleged that the defendant awas retailer selling tangible personal property, as such was liable the State of California taxes, for certain penalties, sales on interest account of April 1, 1934, business done from 30, 1937, pursuant provisions June to the of the Retail Sales (Stats. 1933, p. 2599, Tax Act amended, Stats. pp. 1.937, and Stats. pp. 2222). 1326 and answered, denying he was the indebted to for sales taxes amount whatsoever. state At the con- plaintiff’s clusion of the case a motion for a nonsuit de- When the evidence nied. granted court motion for a defendant’s directed verdict. In addition to judgment appeal an appeal from from deny- an order motion ing plaintiff’s for a new trial was noticed. The appeal is dismissed reason that the latter order Wells, (Code Proc., 963; Civ. sec. appealable. Perumean v. (2d) (2d) 8 Cal. pur- board proceeding the defendant the de- possession that
ported in its to act on information on returns incomplete and insufficient fendant made required to should be that he by him and business conducted respect the In this pay tax his retail sales. an additional granted authority 17 of board under the section acted provides part act follows: act purpose administration of this proper “For imposed, prevent hereby it shall evasion of the tax hereby subject gross receipts presumed that all are until If board imposed contrary is established. payment of the tax made satisfied with return empowered to by any retailer, hereby it is authorized of tax due from such retailer make additional assessment upon based contained upon any facts in the return or in- possession formation within its or that come into its ’’ possession. In support of its case the offered “Application defendant’s Engage for Permit to in Business *3 Betailer”, September as a 28, 1934, dated and to a conduct cafe Monica, Ocean Park Boulevard, Santa an application April 27, 1937, dated to conduct a similar busi- ness at Ocean Park Boulevard. There was also received plaintiff evidence on behalf duly of a certified Certifi- cate Delinquency, of Sales Tax February 8, dated 1933, show- ing Equalization that the State Board of had made the assess- ment against of sales taxes the defendant to enforce the collection of brought. which this action was
The record does not grounds disclose the on which the trial court directed argument the verdict. main of both parties question is addressed to the sufficiency of the of delinquency, pursuant certificate issued to section 30 of act, prima a to establish case for state, and that facie question is principal therefore the question on this appeal. provides, part, Section that board bring people action in the name of the to collect the de “amount together linquent penalties”, and that “in such action a by showing certificate the board delinquency shall of prima evidence tax, of the delinquency facie compliance by the board provisions and of with all of this act computation and levy in relation of the tax”. question defendant does foregoing effect of the language establishing prima pur- it facts which facie ports establish, to but contends of that the certificate delin- quency under that section does not establish a prima facie distinguished case as from evidence of such facts. facie pointed It is also out that addition the introduction to delinquency plaintiff the certificate of introduced docu- mentary evidence of certain returns submitted the defend- during ant to the board of retail sales some of the time in question payment the sales tax in accordance with argued prove those returns. It is then that in order to its necessary prove for the case it that the de- business than his fendant transacted more returns showed delinquency and that the certificate could serve that such additional business done. establish provides: of Civil Procedure 1833 of Code Section proof for the is that which suffices evidence “Prima facie fact, and overcome other particular until contradicted provides: 1824 of the same code ”, ... and section evidence, fact the establishment is the effect of “Proof (See Hopkins, evidence”. Moore Cal. 270 Rep. 247].) something Am. Proof is 318, 17 St. more than therefore, When, delinquency the certificate of evidence. purports the facts it pmma made estab- act, proof 30 of the it is section those facts lish under case sufficient to such is “until by other overcome evidence”. contradicted of section of the act the benefit Without assumed out a case make in order to tax necessary would be statute it for the state under this payer tax had been levied in prove that the accordance with the engaged the defendant had been statute; in a business subject tax; him to that the which transactions assessed the tax was had taken place, account *4 paid. With these had not been matters estab that have to “assume the defendant burden of lished defect, ground or illegality, of non-liability any proving (61 the action. defeat ...” relies to Cor. Jur., he which 1063, 1065.) pp. 1403, 1401, secs. 30 we are satisfied that the of section certifi- aid the With established, prima delinquency facie, the essential of cate proof plaintiff's case. That certificate recited that the it statute; board had made the assessment under this name, giving his against had been made stating period place business, and and address made, penalties the assessment and amounts interest, become indebted in the and that the defendant had paid. named, part This amounts of which been cer- no delinquency defendant and tificate showed statute terms then made the its certificate prima facie levy delinquency, evidence of such of the tax and of compliance by provisions the board with all the act computation levy relation to the of the tax. and provide specifically that the does It is true statute delinquency prima the certificate shall constitute evi- facie is plaintiff’s case; not essential that dence of the but those particular long import words be used so as words of similar significance equal employed. act, and Section 30 of the supplemented cited, the code sections above was sufficient to constitute certificate proof of plain- tiff’s cause of action and as such put sufficient to the defend- proof, any had, any ant on his if he invalidity, irregularity or ineffectiveness of the tax.
The terms of section 30 of the act are as broad and inclu- having provisions sive as those other statutes similar put upheld as sufficient to his proof. statutes the same effect are cast in numerous the same general purpose mould. them, all of however, is to place party the burden on the attacking the validity of the same, tax to ineffectiveness any statu- designed tory provision fairly accomplish that result is sufficient. Irrigation 49 of the “California
Section District Act” p. 1897, 254; Deering’s (Stats. Laws, Gen. 1937, Act originally 1835), adopted p. p. still in effect, provides that the assessment-book or list, certified unpaid collector, “showing by assessments person, property, evidence of the assessment, assessed, delinquency, property the amount of assess- unpaid, and that all the ments due forms of the law in re- the assessment such lation to assessments have been nothing There complied with”. this section which in *5 734 delinquent
terms
list
makes the assessment-book or
so certified
distinguished
prima
showing
case,
a
plaintiff’s
of the
facie
prima
from
sufficient
establish the
proof of facts
to
facie
plaintiff’s
Lux, Inc.,
in
case. This court said Miller &
v.
171], with refer-
Secara,
page
193
Pac.
755,
Cal.
771 [227
irrigation
an
ence to the
introduction of
district
effect
in
“By
assessment-book
evidence on behalf of the defendants:
doing
defendants
case of the
so
established prima
facie
validity of
all forms of
the assessment
of the fact that
levy
complied
law in relation to
had been
the assessment and
compel
only
showing
justify
with. This
would not
but
finding
this effect unless it was both contradicted
to
by other
in the case”.
overcome
evidence
delinquent
providing
list shall
The
that a
laws of
state
in an action to
case
sufficient to establish
facie
early origin.
In 1860
of a
are of
enforce the collection
tax
passed
in an action to
legislature
providing
an
that
act
certified,
list, duly
delinquent
tax the
an ad valorem
collect
delinquency,
“to
property
should be
unpaid,
assessed,
of taxes due
amount
and that
levy
forms of law in relation
assessment of
1860,
(Stats.
complied
pp.
with.”
been
such taxes have
attack in
case of
140.)
People
was under
provision
This
Am. Dec.
It was held that
guage Codes, 1873, 1874, (Amendments pp. 149, 3789. tion 1874.) day On approved March 28th 150; approved providing act was of a month same enforcement purposes, of which it was state list, duly certified, “shall be provided validity of the assessment, prima due, every necessary and of fact stated therein the amount 1873, 1874, (Stats. p. 748, 15.) action.” sec. maintain varying their statutes, phraseologies, were early applied (People cases. upheld this court numerous 144; 61 Cal. v. Donnelly, Phelan, Cal. Francisco v. San 617; Q. County Co., Cal. Sulphur Lake v. Bank M. [4 Pac. 876]; County Churchill, Cal. Modoc Co., 96 771]; W. San Gabriel V. L. & Co. v. Witmer Brothers *6 588, A. 500, 18 L. R. Cal. 623 31 Pac.
Uniformity language appears in numerous later statutes providing that a assessment-book or list certified Except for prima shall constitute name evidence. the facie duty appropriate or of the board officer whose it is to admin following same, language the statutes contain ister the identi language question: of cal the section 30 of the act here in Corporation (Stats. and Franchise Tax Act 1929 The Bank amended, 1937, 2346) ; 1929, p. 19, 31, as Stats. sec. the p. (Stats. 1935, p. 1090, 1935 Tax Act of Personal Income sec. (Stats. 28); Use Tax Act of 1935 1935, p. 1297, the p. 1937, p. Stats. 1944); amended at the Private Car 1937, (Stats. p. Act p. 624); Tax 621 at Corpora (Stats. p. 2199). tion Income Tax Act of 1937 1937, p. 2184 at language change A with no in legal variation in but effect found in the Motor Vehicle Fuel License Tax Act of 1923 (Stats. 1923, 571, p. 1931, 105 p. p. 111), as amended Stats. at Licensing Highway (Stats. Carrier’s Law of p. 928, 1937, p. p. 1933, as amended Stats. 1919 at 1930). might provisions taxing of other statutes Similar be re sufficient ferred but examination has been made to indi beyond question that cate it has been the intention of the legislature early from the history of the state to make delinquent list, of the assessment-book copy duly certified, or right evidence prima payment enforce facie involved, tax or assessment and that when such showing has placed made the burden is on been the defendant to show the any non-liability. claimed There extent is no reason to language of section 30 accord the of the act here under con significance sideration other than that given the earlier purpose. enacted for the statutes same In fact “levy” term as used given statute well a defi comprehensive in accord with the nition meaning ascribed to support authorities cited in it in numerous of the text in 551, Juris, page where it Corpus is said that in proper its legislative “it the formal official sense action of body power invested with taxation—whether national, state of a local—whereby or it and declares determines value, amount, shall percentage certain or of certain subject imposed persons thereto”. property Moore 'levy’ term Foote, it said: “The Miss. author- imports performance . . . acts as would such ize proceed the tax collector to taxes.” to collect the When delinquency makes the certificate of prima statute facie “levy” defined, so like also compliance by provisions all re- the board with of the act in delinquency payment, lation to the no more required prima seem to establish a to be case. facie argument advances the that since the introduced evidence effect that the during period paid question, some sales taxes had on the state also to that the defendant incumbent prop paid period for that which were taxes argument chargeable against erly that, him. The seems to be assuming showing certificate of delin destroyed quency, showing has its *7 produced. by evidence it The contention can the additional with for we are at once confronted the rule be sustained may reference to what evidence consid in state with be This rule has been a for a directed verdict. on motion ered would seem be un that a restatement to repeated so often Eng in it reiterated is necessary. A ease which was recent Corp., (2d) 11 Cal. v. Auburn Auto Pac. strom Sale [77 rule (2d) conflicting Under the the evidence with 1059]. disregarded. plaintiff to the must favorable be If evidence sup of sufficient substantiality no evidence to remains there granted, the motion otherwise not. port a verdict produced by the plaintiff additional The testimony the of the defendant called of under first consisted Procedure. the Code of Civil This evidence 2055 of section But on the plaintiff. motion for binding on the a was weigh it would in verdict so far directed far as so it was favorable. unfavorable it would be was disregarded. (Smellie Co., v. Southern Pac. Cal. ; Dempsey Movers, House Star Inc., Pac. Cal. 529] [299 (2d) (2d) testimony App. engaged in that he the retail showed business defendant confections, refreshments, tobaccos, etc., across selling of plant Company street from Douglas Aircraft Monica; Santa that the business was run three units in each of which were registers; one or more cash those units were run retail name establishments under the during question defendant and retail period no permit applicable sales thereto than the one issued to other defendant; that the made certain returns to paid therewith, board and the tax in accordance but pay he did not make return for all of the units nor operation all of them. The defendant endeavored to agreements show that he leased certain units on to share the profits, that he was not liable on account transactions uits, legally those and that he had all the taxes he was paid pay. bound
Other evidence on was to the effect behalf of the that an auditor of had made an extended investi- the board gation his business of the and had submitted report including board, report based information making obtained from those who were sales defendant’s place business, and from who had sold merchandise those business, place defendant for said resale at tended that the defendant not made a true and correct return of transactions to the board. his produced nothing by
There plaintiff which as a the prima matter law overthrow by delinquency. case made the certificate of Whatever produced by evidence was contrary the defendant case established delinquency, certificate of including produced such evidence him when called as 2055, merely a witness under said section created a conflict to jury resolved appropriate under instructions from the court. judgment is reversed.
Seawell, J., Langdon, J., Curtis, J., Spence, J., pro tem., concurred.
Houser, J., dissented. J.,
EDMONDS, Concurring. I concur in the order of re- versal, I but as read the record it is unnecessary to consider whether a certificate of delinquency under the Retail Sales necessary evidence of all the facts Tax Act is judgment taxes, court support and the a for present case. question that
properly decide the at the time defendant’s The before the court in granted shows that for a verdict was motion directed operate cafe. He admitted that permit a applied he a that he conducted after date. this business for some months bought near-by He lot, then a which located the street across large plant, eventually erected three from industrial a upon admits property. stands this booths or a retail controversy conducted in he that for some the time testimony According to his of these units. business one newspapers. drinks and cigars, tobacco, cream, ice soft he sold Apparently were sold. In unit sandwiches and coffee another two and later than the other the much third unit built concerning use. its there is scant evidence upon state claimed taxes the sales made in three 1, 1934, period April 1937. units for the from June defending claim Mr. contended he had Mahoney that portion operated time and one of the units for a that upon reported paid all he and had amounts due had during by him. all other times the taxable sales made At testified, period he each of two units been controversy, by agreement paid that he should be upon him rented profits, and, consequently the net share of his lessees were solely responsible upon for taxes due state sales made However, application by persons them. of one of these permit for a to conduct retail business as the successor of denied. the defendant was
Also, in contradiction of the defendant’s contentions, the premises girls he persons to whom leased worked who units different times testified to other of the one jury might reasonably have from which the inferred facts alleged Mahoney, state, that Mr. conducting being transacted the business lot owned him. of the units were under one Moreover, all roof and from the witnesses, description it is of them difficult to believe departments they more of one were than business. there was circumstances sufficient these Under delinquency relied upon by certificate from aside judgment state, support upon conducting all of the business done ground he was
739 by the units. Much offered the three of this evidence was state, apparently purpose proving the defendant’s ownership of a sales were made. business taxable which rely entirely upon right of the the certificate state to therefore, is, not a the existence of taxable transactions question in the properly upon the record before court present only However, judgment case. reversed is upon placed upon ground, the statu- but a is construction tory provision agree. I with which cannot
Proceedings in invitum and the stat are under statutes strictly ute will be taxpayer construed in favor of against (Barker the state. A.ngeles, (2d) 10 Bros. v. Cal. Los 603, 97]; 608 (2d) Badaracco, Pac. 270 Uhl v. 199 [76 Cal. 917]; Merriam, Pac. 263 United States U. 179 [248 v. S. [44 Sup. 69, 68 240, ; Ct. L. Ed. 29 L. R Gould, A. v. Gould 1547] Sup. 245 S. 53, 211].) U. 151 62 L. In Ct. Ed. [38 action every to collect taxes the must establish fact essen right recovery. “Any attempt part tial to his on the pub the state ... to take of an individual for property purposes by lic way of taxation express must find an statu tory warrant, having object and all laws are to be con strictly in against strued favor of the individual as the state. property by by Whether his is be seizure taken or suit rule In the same. the one ease the is officer must show his seizure, warrant other the must right every fact essential establish to the maintenance of his recovery. either case the proceeding is in invitum presumption indulged no is in favor of the right to take property, or intention is not distinctly ex ’’ pressed in the statute under which it sought is to be taken. (Merced County Helm, 159, Cal. ; Pac. [36 399] see, also, Potter, Estate Cal. Pac. [204 statutory adopted Under the construction my associates, Equalization when the Board issues certificate of delin- quency may rely entirely upon state sue thereon and it to establish cause of action. As this certificate the may show the most conclusive evidence that he the owner was not business as claimed the state and had no connection that he with it. Yet judge the trial or a jury only consider this evidence contradictory parte ex certificate of the administrative board appel- and an required uphold late court a judgment in favor state. principles. The ex contrary This to all fundamental is neces istence of taxable transactions property taxable (Brenner sary validity and assessment v. Los Angeles, 397]), and a basic and 160 Cal. put in proved when issue in fundamental fact must be *10 applied in rule was action collect a tax. This to affirmed an assessment earlier case the effect of where and the court said: considered Equalization Board of powers in certain body possessing “Even enormous and so jurisdiction, may an assessment final not validate instances County (Kern upon property”. River nonexistent Co. Angeles, 164 Los Cal. offi- power make legislature to has the Unquestionably the evidence of a tax- records or certificates cial tax delinquent. claimed to ing right recover amounts body’s shifting remedy by the bur- only the provision Such affects the party who the evidence going forward with den knowledge superior opportunity for usually facts. has a upon in However, of the decisions cited relied none concerning that evidence opinion my associates hold subject dispensed existence of transactions allowing an book validity of a statute assessment with. showing certified, properly amounts un- list, property, to be offered paid real upon certain principles entirely unpaid taxes, is determined apply Moreover, excise taxes. which those different from upheld have been con- the statutes this court all of comprehensive much more -language definite than tain Tax Retail Sales Act. that used