Opinion
No. 35870
Decided April 29, 1959.
Taxation — Sales tax deficiency assessment — Sandwich and soup shop — Test check not made during representative period — Assessment modified.
APPEAL from the Board of Tax Appeals.
This case involves a deficiency sales-tax assessment. During the audit period in question, plaintiff was the owner of the business involved, a sandwich and soup shop, in which many of the sales are claimed to have been less than 41 cents and not subject to the sales tax. The plaintiff kept no records of other than gross sales. The deficiency assessment resulted from a test check made after plaintiff sold the shop and it had been converted into a general restaurant, with menu prices raised and new and higher-priced items added.
The plaintiff appealed from the Tax Commissioner's assessment order to the Board of Tax Appeals, contending that the test check was not made during a representative period.
The Board of Tax Appeals, after hearing, modified the order of the commissioner and remanded the cause for correction in accordance with such modification, stating in its entry that it cannot "be unmindful of the order's disregard of the facts that are hereinbefore recounted," and, "where known facts exist, that the audit period and the test period are each not representative of the other in their entirety, that the assessor must be mindful of any such dissimilarity, and give it reasonable and fair application in his order thereon made."
An appeal by the Tax Commissioner from the decision of the Board of Tax Appeals brings the cause to this court for review.
Mr. Russell I. Sturgill, for appellee.
Mr. William Saxbe and Mr. Mark McElroy, attorneys general, and Mr. John M. Tobin, for appellant.
From a careful examination of the record, this court is unable to find that the decision of the Board of Tax Appeals is unreasonable or unlawful. The decision is, therefore, affirmed.
Decision affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.
PECK, J., not participating.