*1 plea abatement, premature, must All concur. Dismissed. the Justices -Rehearing July Submitted June 1958 Decided July 22, 1958. denied Alphene Kravitch, plaintiff in error. Dowell, W. Aaron Sylvan Garfunkel, Solicitor-General, A. Ryan, Jr., Andrew J. Solicitors-General, Assistant Usher, F. H. Glass, James Jack contra.

20095. STATE OF GEORGIA et al. v.

COCA-COLA BOTTLING CO. Argued July 11, 1958 June 1958 Decided

Rehearing July 22, 1958. denied *2 Eugene Cook, Attorney-General, Hugh Ben F. Johnson, Jr., Gibert, Broaddus B. Zellars, Deputy Assistant Attorneys-General, plaintiffs for in error.

Edward R. Kane, Jones, Williams, Dorsey & Kane, contra. Louis Regenstein, Smith, Kilpatrick, Rogers Cody, & Mc- Clatchey, Powell, Goldstein, Frazer n &Murphy, Alston, Sibley, Spann (cid:127)& Miller, Shackelford, Sutherland, & Asbill Bird Brennan, & Howell, Arnold, & Golden Gregory, Swinson, Elliott Schloth, J. Robert Elliott, Willis Battle, parties parties at interest not to record. *3 Justice; Chief

Duckworth, It is time to move on from the perimeter matters dealt with in Bottling Co., App. (92 93 Ga. 609 548), S. E. 2d and State of Georgia v. Coca-Cola Co., (94 212 Ga. 630 S. E. 2d 708), to the heart of this case for a final and comprehensive de cision. The words “doing business” contained (Ann.) in Code (Ga. 299) 92-3113 p. § construed as the Court of —when Appeals, and as this has repeatedly construed that term in Montag Bros. v. State Revenue Commissioner, 660 (179 563), Parke, S. E. Davis & (31 Co. v. Cook, 198 Ga. 457 S. 156 1360), A.L.R. Suttles v. Owens-Illinois Co., Glass (59 206 Ga. 849 392), S. E. 2d Redwine v. Dan River Mills, 207 (61 Ga. 381 E. 771), 2d Redwine v. United States Tobacco Co., (75 209 Ga. 725 556), S. E. 2d Schenley Redwine v. Indus (83 tries, 16), S. E. 2d and Stockham Valves & Fittings 197) v. Williams, 213 Ga. 713 S. E. 2d —constitute questions answer to the raised pleaded facts. After our appearance, holding .decision on the former that the three- (Ann.) provided factor formula 92-3113, supra, Code could petition by not be its applied, striking amended all reference formula, allegations: to that and added That “The plaintiff by buying selling earned its income Coca-Cola syrup. selling. All its had no cost of orders for Coca-Cola syrup alleged further came to it unsolicited.” The amendment during years 1949, 1951, plaintiff’s at all times principal place office and of business was located Fulton Georgia. County, single There is not a word in the amended petition suggest to even had or maintained a any its place branch office or of business at which business any income. There- produced was transacted which fore, “doing repeatedly under the definition business” stated income foregoing decisions, in the we now hold that entire doing its business produced by here involved was place sole officeand of business in County, Georgia. Fulton taxing We now look to the statute to determine if all or very taxable. The first sentence of (Ann.) 92-3113, supra, imposed by Code is: “The tax apply income, defined, shall to the entire net as herein by every corporation, foreign domestic, owning prop- or received erty doing sentence, business in this or State.” second doing part, “Every corporation is: shall be deemed to be any engages State if it within this State within this profit financial or purpose or activities transactions misunderstanding, the second against Then gain.” to insure provides: paragraph of the section “If the entire business income corporation property derived from owned or business State, imposed the tax shall be on the entire bus- paragraph, A further clause in the first iness income. . doing place of wit, not it maintains an office or “whether or words, State,” previous relates within this back transactions,” any activities engages “if it within this State *4 This or transactions.” existence of “activities and assumes the or of such activities recently in the absence held Valves & Fit- Stockham imposed. transactions, a tax was not supra. tings Williams, Ga. v. sought, imposition is light rather than confusion the

Where corporations derived upon entire net income of the tax the As to all perfectly is obvious. doing business in this State from such the imposed, net income the tax is and the remainder relating is apportionment section an where it to of income done property derived from owned or business part part property within this State from owned or and an wholly judicial A search for inapplicable. done elsewhere is to from business answer what of the income derived into precisely point. Sallies within State must end this this contradictory provisions complicated, confused, possibly fonnula relating three-factor-apportionment contribute to the applicable when understanding portion nothing to a clear both tax- that the quite evident apportionment. there is no It is to their confusion ing added authorities and the have by such needless sallies.

Essentially what is the nature of an is important income tax seeking upon the subjects a which it is It is imposed. not property .tangible intangible or It is a tax —either —tax. the corporations having net income received or property all doing business in State. It dis- this must be uniform and not criminatory. any part escape lawfully Before of such income can Georgia tax law, appear it must derived property or owned business done of this State. outside 1-815) not, (Code, Ann., could under 14th amendment (Code, 1-125) Ann., commerce clause of the U. S. Con- elsewhere, stitution, against taxed and this court so held Fittings Williams, Georgia Stockham Valves State of indi- 713, supra. anything not in this to We do find record portion paid whether or this has tax cate not parties to whom in which reside the several States certainly not wish to see syrup. it We would sold Coca-Cola manner, is in such but this Georgia suffer losses enterprise beyond responsibility Certainly our and control.

taxing by their authorities vacillation and misconstruction major part confusing taxpayer. have had But apparently the State nor this ever neither officials were abide their mistakes. The result this case with content to nullify seeking sides all basis either had contended both by our exactly they will obtain accepted, and that what decision. *5 by emphasis put petitioner

Considerable is counsel for the delivery payment upon the terms of the sales wherein to “The provided. impressed We are not this fact. seller IX Title in this appearing word 'sale or sales’ Part of wherever Georgia shall be purpose apportioning net income to of through or be the total value of all sales made deemed to State, this re offices, within agencies, or branches located (n) (Ga. (Ann.) gardless the destination.” Code 92-3002 Cook, 457, v. 112); Davis & Co. 1937, 109, Parke, pp; Ga. Montag Commissioner, 50 Bros. v. State Revenue supra; in nor did it supra. did not intend to 660, The 1950 act employment Obviously, act, by the change this fact rule. net as sought spread the tax to extremely language, loose said in Attorney-General widely possible. As the Assistant as in Red decision anticipated our brief, 1950 act his doubtless the supra, was rendered Mills, Ga. which Dan River wine February approved 1950 was after the act on October the tax not exact Georgia could held that 16, 1950, wherein we State. in this “doing business” no because there was claimed dis- hereinbefore the clause act contained Therefore, the 1950 though tax even thought authorize cussed, it was would which in the State. maintained place of business no officeor there was Williams, 213 Fittings v. Valves in decision Stockham Our no more with any taxation effectively barred 713, supra, than that. basis (Ann.) expressions

There are a number of 92-3113, Code relating solely corporations supra, whose income is derived doing doing in this from business State and in from elsewhere, upon which counsel for seize emphasize support position. as for their But conclusive why position portion their is unsound is that reason corporations solely to de- statute those whose income is relates doing Georgia, which, part only rived above, taxpayer. not true case demonstrated its corporation with office in which Were the exporting products cotton or other is trans- all its business Georgia, and, its were all income derived from located acted Europe upon mailed to nations of orders to all the shipments office, goods and the shipped on terms payment point destination, could it reasonably shipper contended that would not be liable for income from an- operations? swer is emphatically taxpayer’s no. This income is a direct parallel unquestionably it is liable to this State for income *6 tax net the opera- derived from its entire business tions. Georgia Its business is in the and destination origin shipment in no wise alters this fact.

By no stretch of the imagination can pres- it be said that our ent ruling offends the law of the case fixed as on the former (State appearance Georgia v. Bottling Co., Coca-Cola of Ga. 630, supra), for the sufficient reason there that we ruled that plaintiff the was not entitled to use the three-factor formula and reversed Appeals Court of in its affirmance the lower court the overruling in general a demurrer petition, thereby ren- dering nugatory proceedings. all further Any ruling by this court purely was dicta, ruling evidence obiter since the on the de- portions murrer resulted in all Appeals other of the Court of opinion becoming completely void, pointed by Judge as out Fel- Georgia ton in Bottling Co., State (95 33), wherein that the trial court reversed ruling. in plaintiff accordance with our After the that decision pointed amended, above, alleged out and that the entire in- only come arose received involved from unsolicited orders at its in place business, Georgia, office and which is located and expense it in securing from which had no these orders. This changed factually upon. case the one ruled the there might the statement the former de- further observed that engaged selling property plaintiff cision the was both in that say conducting any Georgia it was and out of does not place office and engaged It was in other States. engagement Georgia. a result of that it sold here As territory. in its This embraced the States to customers several mean, engaged was saying, nor does it not Georgia. elsewhere than such business rulings petition alleged that the amended foregoing show judgment require and a reversal of the over action no cause of further, the general thereto; demurrer and that ruling by alleged good counter-suit the State grounds recovery for the sought, and it was error thereto. This to sustain demurrer would, counter-claim taxpayer accepted had the and abided thereby, have a dispute encountered the rule .that a settlement of parties binding, attempt but the repudiate claiming settlement, it by rejection more is a rejection accepted, open the State has and the matter is which to this counter-suit.

Judgment except Candler, concur, reversed. All the Justices J., J., J., disqualified. who dissents and P. Wyatt, Almand, before, case here Justice, dissenting. When this was

Candler, years tax in- presided held the five Justices who plaintiff, a volved, evidence showed colórate selling tangible personal engaged in the business of taxpayer, See property, both in this State elsewhere. 708). By S. E. 2d Co., 212 Ga. 630 Coca-Cola Ap- ruling the Court holding,

so affirmed which this court See State peals point. on that previously had made in case *7 (2a) App. 609 Co., 93 Ga. 548). case was twice amended petition The the Court ruling remittitur of and before the after this court’s court. judgment of trial Appeals made the was allege taxpayer, them, simply amendments, I construe selling in the involved, engaged years elsewhere, but property both tangible personal only one of the employed of its business it in the conduct act of 1950 by the up provided formula making factors three factor. gross-receipts-ratio (Ga. 299), namely, the 1950, p. was fixed this case my opinion that Hence, it is agree to being true, I cannot holding; and this our former majority. ruling now made CITY et al.

20100. LEWIS v. OF SMYRNA