Opinion
37425.
DECIDED FEBRUARY 17, 1959.
Affidavit of illegality. Mitchell Superior Court. Before Judge Crow. August 20, 1958.
Eugene Cook, Attorney-General, Ben F. Johnson, Jr., Robert H. Walling, Deputy Assistant Attorneys-General, for plaintiff in error.
Moore, Gibson, DeLoache Gardner, R. Lamar Moore, contra.
The State Revenue Commissioner caused a fi. fa. to be levied on property of the Camilla Cotton Oil Company to collect "sales tax" claimed to be due the State. The defendant in fi. fa. filed an affidavit of illegality in which it was alleged that the amount claimed was not due because the property on which the tax was sought to be collected was the subject matter of a casual and isolated sale made by a New York Company, and that the property (personalty) was then shipped into Georgia where it has since been used by the defendant in fi. fa. On the trial of the issue thus made it was stipulated that the seller was not in the business of selling such personalty, nor was the buyer in the business of buying such personalty. It was further stipulated that the tax alleged to be due was on such sale and involved no other transaction. The trial judge, who heard the case without the intervention of a jury, found for the defendant in fi. fa. and the Revenue Commissioner excepted. Held:
The plaintiff in error, in his brief, no oral argument being presented, concedes that the decision of this court in Williams v. Suwannee Longleaf Mfg. Co., 97 Ga. App. 431 ( 103 S.E.2d 123) (affirmed by the Supreme Court on writ of certiorari, 214 Ga. 613, 106 S.E.2d 797), controls the present case adversely to his contentions. With this reasoning this court agrees, and the judgment of the trial court holding that the Camilla Cotton Oil Company did not owe the tax must be affirmed. Judgment affirmed. Felton, C. J., and Quillian, J., concur.