The State Treasurer complains that the superior court in rendering a judgment for the amount of taxes paid by the respondent under protest, improperly construed the Retail Sales Tax Act (Stats. 1933, p. 2599; Deering’s Gen. Laws, Act 8493). The taxpayer was allowed to recover upon the theory that this act, as in effect at the time the assessment was made, does not include a bona fide social club.
The respondent is a non-profit corporation, organized for social and political purposes. It occupies a building in San Francisco in which it maintains all the facilities of a modern club, including dining rooms and a bar. The building is open only to members, which number between five and six hundred, and their guests. Apparently the operations оf the dining rooms and bar are carried on at a loss, the deficit *277 being made up from the fixed dues paid by members and assеssments made upon them. In 1936 and to September 30, 1937, the club furnished liquor and meals to its members and their guests in an amount which required thе payment of the sum sued for in this action if it was at that time a “retailer” engaged in “business,” as these terms were defined by the Rеtail Sales Tax Act, supra, as then in effect.
The State Treasurer declares that the respondent is included within the definitions of these terms as stated in the act, and if the statute is ambiguous, it should be construed in the light of the administrative interpretation of it by the Board of Equalization. The respondent contends that a bona fide social club with a limited and selected membership, which incidentally furnishes food to its members, is not engaged in business in a commercial and trade sense, and therefore is not a retailer within the sсope of the act. More specifically, it declares that there is no sale by such a club when food or liquor is served because the transaction is not the transfer of title or possession “of tangible personal property” for a consideration by one “engaged in the business of making sales at retail . . . with the object of gain, benefit or аdvantage, either direct or indirect”, which are the requirements of the tax law. (Secs. 2c, 2d, 2e.) It also relies upon thе fact that in 1939 the statute was amended so as to expressly include social clubs in the definitions of persons and sales and no administrative interpretation of the provisions of the act, insofar as social organizations are сoncerned, had theretofore been made.
At the time the respondent was assessed, the Retail Sales Tax Act, as amended in 1935 (Stats. 1935, p. 1256), required the payment of a tax upon every “retail sale” or “sale at retail.” These were defined as “a sale to a consumer or to any person for any purpose other than for resale in thе form of tangible personal property ...” (2c). A “retailer,” in the language of the act, was “every person engаged in the business of making sales at retail” (2e), and “business” was said to be “any activity engaged in by any person or caused tо be engaged in by him with the object of gain, benefit or advantage, either direct or indirect” (2d).
The transactions for which the respondent was assessed were ' ‘ sales ’ ’ within the statutory meaning of that term
*278
(Ada County
v.
Boise Commercial Club,
It is significant that the statute does not include the word “profit” in its definitions but imposed a tax upon the transactions of one conducting business “with the object of gain, benefit or advantage, either direct or indirect.” Assuming that no profit was either intended or realized by the club from the operations оf its dining rooms and bar, it does not follow that there was no “gain, benefit or advantage.” Few persons would go to a club without these facilities and they undoubtedly largely contribute to the success of such an enterprise. In construing a statute using the identical language of our own, the Supreme Court of Ohio aptly remarked: “ ‘Profit’ may be said to be ' gain, benefit, or advantage,' but ‘gain, benefit, or advantage’ does not necessarily mean only ‘profit’.”
(State
v.
Zellner,
The respondent relies upon
Cuzner
v.
California Club,
As against these contеntions, the respondent takes the position that because the legislature in 1939 expressly amended the statute to imрose a tax upon social clubs, this court should construe the former law as not including them. As against these contentions, the respondent takes the position that because the legislature in 1939 expressly amended the statute to impоse a tax upon social clubs, this court should construe the former law as not including them. This statement is based upon the gеneral rule that courts ordinarily assume from a new enactment, a legislative purpose to change the existing lаw.
(People
v.
Weitzel,
The judgment is reversed with directions tо enter judgment for the appellant.
Gibson, C. J., Shenk, J., Curtis, J., Carter, J., and Spence, J., pro tem,., concurred.
Respondent’s petition for a rehearing was denied August 21, 1941. Traynor, J'., did not participate therein.