The opinion of the court was delivered by
Prоsecutor, Peter Doelger Brewing Corporation, debtor, by Peter P. Artaserse and Plugh H. Begley, trustees, &с., seeks to reverse judgment of the Department of Taxation and Finance of the State of Yеw Jersey, Division of Tax Appeals, affirming an assessment imposed under authority of R. S. 54:43-l by the Beverage Tаx Bureau of said Department of Taxation and Finance against prosecutor in the sum of $16,666.79, reрresenting said assessment, interest *130 and penalties upon the sale of certain alcoholiс beverages by prosecutor made within the State of New Jersey. Prosecutor contends that it is not subject to the assessment under review; that the sales of alcoholic beverages, upon whiсh the assessment is based, are exempt f^om taxation under the provisions of B. 8. 54:43-2. We are convinced there is no merit to prosecutor’s contention.
The pertinent provisions of the applicable statute, effective at the time of the imposition of said taxes, are as follows:
“R. S. 54:43-1, Tax Rates.
“Thеre are hereby levied and imposed upon any sale of alcoholic beverage made within this State or upon any delivery of alcoholic beverages made within or into this State, the following excise taxes:
“a. Beer * * *” $0.03 1/3 a gallon or fraction thereof.
“R. S. 54:43-2. No tax on beverages shipped out of the State: exception.
“Nо tax imposed by this subtitle shall be payable on any sale of alcoholic beverages by any Stаte licensee for resale and consumption outside of the State, or directly for consumрtion outside of this State, when said sale is accompanied by the actual transportation оf such beverages * * * in full compliance with the laws of the place or places of delivеry; provided, evidence of such sales and deliveries satisfactory to the commissioner is submitted.”
Thе assessment in question was the result of an investigation of prosecutor’s records, made by authority оf the provisions of B. 8. 54:45-5b. The Division of Tax Appeals determined the factual'situation to be: that the sаles in question were made by prosecutor, a New Jersey licensee, to T. & D. Trading Company within the State of New Jersey; that T. & D. Trading Company is a partnership, composed principally of officers, stockholders or employees оf the Peter Doelger Brewing Corporation, with their headquarters located at the placе of business of the Peter Doelger Brewing Corporation, Harrison, New Jersey; that the transactions in quеstion were reported to the Department of Alcoholic Beverage Control by the appellant as exempt from taxation under B. 8. 54:43-2; that the T. & D. Trading Company, upon obtaining *131 an order from one of .its out of the state customers, would, in turn, order beer from the prosecutor; that the beer would then be loaded on railroad сars at Harrison, New Jersey; that the bill of lading would then be delivered to T. & D. Trading Company at Harrison where it would be endorsed by it and forwarded with a sight draft to T. & D.’s customer in the South; that prosecutor parted with possession of the goods in question at Harrison, New Jersey, and at the same time surrendered title therеto by delivering bill of lading to T. & D. Trading Company; that thereupon T. & D. Trading Company accepted delivery of the goods, took possеssion thereof and exercised dominion over them by assigning the bill of lading to its customer. The Division of Tax Appeals held that, under the evidence, these sales were clearly within the purview of B. S. 54:43 — 1, thereby mаking them subject to the assessment in question. We concur in this determination. To sustain prosecutor’s cоntention that “none of the beer involved was ever sold or delivered in the State of New Jersey for consumption” and, therefore, exempt under R. 8. 54:43-2 places an unwarranted construction upon the provisions of the applicable statute, not justified by the facts as determined by the Division of Tax Appeals. To adopt the prosecutor’s view would result in thwarting the legislative intent of the aсt under review. This court will not set aside a judgment of the State .Board of Ta-x Appeals on factual issues, if there was competent evidence to support its findings. There appears to be nо merit in prosecutor’s contention that the Eoard erred in its determination of the factual issue.
Prosecutor relies on the case of Schenley Distributors, Inc., v. State Tax Commissioner, 18 N. J. Mis. R. 266. A rеview of this decision convinces us that it is not applicable to the facts in the case under review. There was only one sale in the Schenley case, supra, which was made directly to the purchаser for consumption on the high seas. In the case under review, the sale was first made in New Jersey tо the T. & D. Trading Company. The T. & D. Trading Company, in turn, disposed of the beer by subsequent sale to its own customers. R. S. 54:44-1 provides in part:
*132 “The taxes imposеd by this subtitle shall be due and payable at the time of the first sale or delivery, as the case may be, in this stаte.”
This provision of the statute clearly establishes the propriety of the assessment in question, in the light of the factual findings of the Division of Tax Appeals, which, upon examination of the record, we find are supported by the evidence.
We have considered the other grounds advanced by prosecutor for a reversal of the judgment below, and find no merit in them.
The writ is dismissed, with costs.