Opinion
No. 30720.
October 16, 1933.
LICENSES.
Statute imposing privilege tax on oil depots applies only where there is wholesale distribution and not where there is retail business (Laws 1930, chapter 88, section 137).
APPEAL from Circuit Court of Quitman County.
Boone Lowrey, of Marks, for appellant.
While we admit that it is the general rule to construe taxing statutes favorably to the taxpayer, when we consider that the purpose of the tax as originated in the act of 1926 (chapter 118, Laws of 1926) was not entirely to raise revenue, but was to regulate storage, we insist that until the purpose of the legislature is definitely and specifically changed, as it was in 1932, it would be speculation to construe the 1930 act (chapter 88, Laws of 1930) in favor of the appellee's contention.
It would be a very simple matter for the legislature had it intended to exempt retail distributors to so specify in this act, but not until the act of 1932 (chapter 89, Laws of 1932) is there any positive evidence of such an intention, and in our opinion the reasons specifically set out in the 1926 act for the imposition of a high privilege continue through the 1930 enactment and until specifically changed by the laws of 1932, we therefore submit that this cause should be reversed, and judgment rendered by this court in favor of the appellant.
T.N. Gore, of Marks, for appellee.
A reading of the Act of 1926, the Act of 1930, and the Act of 1932, taken chronologically, leads to the inevitable conclusion that it was the legislative purpose to restrict the application of this tax to wholesalers only.
There is no escaping the conclusion that the word "wholesale" modifies the words "sale, delivery and/or distribution of gasoline, kerosene and/or lubricating oil or other petroleum products." If it should be conceded that the word "wholesale" does not have such a modifying effect, I submit that one who retails oil from pumps to retail trade, at his place of business, not for the purpose of resale, but for the consumption by the purchaser, is not engaged in the "delivery and/or distribution" of the commodities named.
The town of Marks contended that E. York was due it a privilege tax under chapter 88, Laws of 1930, and made demand upon him for the same. York paid the privilege tax under protest, and brought suit to recover the amount so paid.
The statute involved was section 137, chapter 88, Laws of 1930, which reads as follows:
" Oil Depots. — In addition to all other taxes imposed by law, upon each person operating an oil depot for the wholesale sale, delivery and/or distribution of gasol ne, kerosene and/or lubricating oil or other petroleum products, as follows: Where the storage capacity of the oil depot is over five thousand and not over twenty thousand gallons ....................... $50.00."
The other provisions of the act increase the tax for increased capacity.
It is agreed between counsel that under the facts the said York was not engaged in the wholesale business, either in the sale or distribution of gasoline products, etc.
The statute, we think, was careful to make it plain that the tax was to be limited to the wholesale delivery and distribution of such products, and was not to apply to the retail business.
Under section 166, chapter 118, Laws of 1926, the statute was so drawn that the tax was made payable, regardless of whether the business was wholesale or retail. In amending this chapter, by chapter 88, Laws of 1930, we think the language used clearly indicates that the legislature only intended to tax oil depots where there was a wholesale distribution, delivery, or sale of the products mentioned, and, after the enactment of such chapter, the legal department having rules that the privilege tax was payable, the legislature, in 1932 (Laws 1932, ch. 89, sec. 146), evidencing its purpose as expressed in section 137, chapter 88, Laws of 1930, made even more plain its purpose.
We are therefore of the opinion that the privilege tax in this case was not due by York, and, the court below having held in accordance with our views, the judgment is affirmed.
Affirmed.