*1 868 Co-op Assn. v. Widen 1767); Emergency and War
91 LE house, 169 F2d 403. Eberhardt, J., concur. Bell, J.,P.
Judgment affirmed. Argued 5, 9, December November 1966 Decided Rehearing 20, denied December & O’Kelly, Hopkins, Carey, Carey, Jack Stewart, & Sartain Gerpen, appellant. for Qerpen, E. J. Van Van Smith, Smith, John H. for Jr., R. Andrews, Robert E. Wilson appellees. UNDERCOFLER, v. GRANTHAM
41980. Commissioner COMPANY, INC.
TRANSFER an Judge. providing Code Ann. 1. 110-1208 Quillian, § subject denying summary judgment shall not be order (Ga. (2) superseded by review has been 6-701 18) where p. providing appeals may be taken L. rendered judgment complained of, if it had been a final dis- by appellant, for would have been claimed party material position of final as to some the cause or Co., 222 thereto. v. Grantham Undercofler Transfer Averett, Parker v. See also the denial of sum- appeal An of the grant mary judgment provided the will now lie appellant motion in accordance with the contentions case. a final disposition would have been The first enumeration of error is as follows: “1. The court sustaining
erred in the State Revenue mo- Commissioner’s tion for summary judgment including judgment but in the thereon the sales or purchases use taxes due on those tangible personal property concerning uses which there dispute.” appellant is no The did not enumerate error di- rectly on summary judgment the denial of favor his be- cause, of course, granting was one finally disposing case, but in an amount by appellant contended to be less than that to which it was entitled. the instant if rendered as Since for a final by appellant claimed would have been dis- position appeal is not motion cause, interposed by appellee. to dismiss has been an appealed superior 2. Grantham to the court from assessment Georgia taxes Commissioner under the Revenue (Ga. L. *2 Retailers’ and and Tax Act Consumers’ Sales Use p. 92-34A) Ann. Ch. 360, amended; as Code and tractors involved leases to common of trucks carriers equip- agreements keep the providing under that lessee should state and federal appropriate ment licensed for with the use liability and regulatory against public bodies, insure them per- as rent a property damage cargo pay and and loss, driv- centage of its to furnish revenue. Grantham undertook discharged by provide selected, paid it, ers employed, and pay provide and compensation drivers, workmen’s for such selecting the repairs, for gas, oil, tires, plates, license places where to provided, these are direct drivers with respect safety, to traffic and maintenace, pay all taxes and fees, liability other assume mishandling any of delivery, pay any resulting being C.O.D. fines from trucks operated permissible weight above maintain limits, inspect, and care for all furnished, so and select routes to delivery cargo be used for from those over which charges among the carrier is licensed to travel. The varied companies and, involved tractor-trailer combina- tions, ran between of the total revenues 52%% 80% received. On this state of facts the Commissioner made and Grantham
opposed a motion for granted The court the motion single undisputed item and otherwise denied the motion. tangible personal
A lease of property ais sale within mean- ing of the Sales and Use Tax Act. Code Ann. (B); 92-3403a § v. Blankenship, Oxford category
But the “personal does not include service trans- actions which involve sales as inconsequential elements for separate charges which no are made nor services rendered repair men separate charge for which a Ann. is made.” Code (C) (2) (a). 92-3403a involves transaction Where § personal both leasing tangible personal services and the property, applicable: “Any person 92-3448a who contracts perform any service, ... and the ma- furnishing of the of that service is the
principal the exclusive control not be under chinery which will tax on the rental to collect sales contractor, shall be liable charges and other used, so and if labor of the machine value so con- charge, person separated from the rental not are tax on the entire collect a sales tracting be liable to shall collect liable to price.” For the defendant to be contract require- are essential provision, there two tax under this part of principal first, that the be shown: ments that must second, that machinery; furnishing of the is the the service con- control the exclusive machinery is not under tractor. that “Car provide specifically leases all, not
Some, but and use possession, rier shall have exclusive carrier.” by or for such operated involved when motor vehicle had as to who provisions Notwithstanding contractual these of both affidavits vehicles, the exclusive control of the con custody and care, recited that lessor the lessee These Grantham. in the lessor trol of the dealing and through course that, affidavits are evidence *3 from the departure a mutual acquiescing was therein, there Long Co. v. Harvesting contract. Tobacco terms the 390). summary (105 Bramen, App. 142, 149 SE2d A Ga. 98 genuine judgment may granted only there is no be “where moving party issue of material fact and the is entitled Corp., judgment a a matter of Holland as law. Sanfax 442). (126 making this determina App. In 106 Ga. 1 SE2d favorably to the construed most tion, the evidence is given the benefit party opposing motion, and he is to be all reasonable inferences of all reasonable doubts and of (144 App. 151, 154 Malcolm, from it.” Malcom v. 112 Ga. Co., McCarty v. National &c. Ins. 188); SE2d Life in these rules to the App. Applying fact, out in the above statement record, stant as set requisites of the conflicting regards both was evidence supra. 92-3448a, Code Ann. statute. machinery equip- assuming furnishing
However, even still supplied, “principal part” of the service ment was as to disputed remains a issue whether there of the lessor Grantham. Since was under the exclusive in order indispensable requirements concurrence of both purview a taxable transaction within to constitute in statute, evidence contained the affidavits the lessor presented jury question. and lessee judge denying motion for
The trial did not err in judgment as to that issue.
Judgment Jordan Bell, J., Hall, J., concur. P. affirmed. J., Eberhardt, JJ., in C. Felton, concur
Frankum, J.,P. Pannell and Been, JJ., dissent.
Argued May 3, 20, 1966. Decided December Attorney McDonald, Arthur K. Bolton, General, Louis F. Attorney Assistant appellant. for General, Westmoreland Patterson, Westmoreland, & E. Heard & Carl Leverett, Robert Heard, appellees. M. Judge, dissenting. Chief court, my opinion, This
Felton, jurisdiction does not have judgment to review a denying mo- tion for a summary judgment sought as to some relief for the reason that remaining some of the issues pend- are still ing in the trial court. Parker v. Averett, judgment The of the court in this case shows granted the motion part was for only sought of the relief and denied as to the grant remainder. It is immaterial that the part motion as to of the relief was consented to taxpayer. judgment This premature, was was unreviewable binding therefore not of the time the was rendered. In this situation taxpayer could have rescinded his consent and position reversed his on the trial of the issues. taxpayer The position could not reverse his if the by consent proper had been rendered at the time and in- stantly reviewable. The rendered in this case was premature grant as to the of the motion, and left the pending case *4 as to other issues and this court does not have jurisdiction appeal until there is an a from reviewable Presiding and Judge, Judge, dissenting.
Frankum, Pannell, appeal The notice of in designates parties this case they the superior stood in the court where the Revenue Commissioner appellee was and Company, Grantham Transfer Inc., were appellants. In the notice appeals the Revenue Commissioner from the on February 18, “granting entered ap- that summary judgment.” for a It is obvious
pellee’s motion here, of appellant in favor the appealed the complain party and it is that a cannot be heard to fundamental opinion Therefore, in his favor. we are of the of dismissed. appeal the be should dissenting. provides in Judge, 92-3448a Deen, part: person writing, or “Any contracts, orally, who either by purchase order, perform any service, principal the furnishing of the part of that service is the which contractor, the of shall will not be under exclusive control the ma- liable collect a sales on the rental of the be tax value . chinery Therefore, so used. .” Grantham Transfer Co. is obligated tax on value to collect remit a sales the rental (a) if of equipment principal its service furnishing carrier consists in the vans which are (b) are matter the lease these vans not under Gran- control. tham’s exclusive part” note
(a) construing “principal we In words is to obtain purpose at issue lessee in the transactions transport. cargo has contracted to hauling it a means of which trailers. vehicles the vans, tractors and Without This means at all. its commitment With carrier cannot undertake party drivers, fur- arrangements specifying hires vehicles, which repairs and so on are matters convenience oil, nishes gasoline, of no use at all but which are might done either furnishing therefore think vans are available. I unless the part of the service. principal is the control, sales tax in- (b) to the issue exclusive As occupa- excise license and in the nature of an volved here is Corp., v. General Finance Ga. tax. tion Williams imposed upon it is tax, As an excise engagement occupation, in an act, an performance of Cigarette Co., privilege. Head Sales enjoyment of it a transaction tax. In other words 452, 457 statutory definition, is the lease involved, by The transaction services which Gran- contract lists most contract. The selecting drivers, carrying insurance, such perform, tham will Any making says: and then “14. etc., paying penalties, repairs, *5 foregoing in the contract provision notwithstanding, carrier shall have control and possession, exclusive use the motor vehicle involved.” statute, the lessor Under who has so contracted is liable. no There has been novation of contract, for the parties contemplated performing of these services Gran- tham in the instance, first primary Grantham’s defense is that it is not liable for the tax because its contract is for furnishing making services as to which the available merely the vans was incidental. The affidavits nowhere state (which that Grantham has exclusive control it must have escape to tax liability) but that Grantham “maintained supervision” continuous and that care, custody “the and con- trol of is vested in . . Grantham .
only to requirements of the Interstate Commerce Commis- sion.” control Ultimate was reserved to the carriers under the agreement. lease That agreement same lease listed the services performed by to be upon Grantham which Grantham now relies to show the carriers did not have control.
Grantham should collect the sales tax the carriers and remit to the consider it inequitable Revenue Commissioner. I assert, they to allow the for tax do purposes, carriers not have control of the vans when leases under which their rights and liabilities accrue such control reserve to them. they Whether choose to exercise it in fact or not is beside the point. long provision they may So as the is in the leases exercise it. unduly generous say may It seems that the carriers reserve control in their so as to leases, meet Interstate Commerce Com- mission requirements, and then exercise fail thereby duty relieve to collect and Grantham remit the sales tax.
42163. GENERAL v. MOTORS CORPORATION
JENKINS, by Guardian, et al. al. JENKINS, by Guardian, 42164. et DANIELS