Consolidated Distributors Inc. v. City of Atlanta

Jenkins, Justice. Even if a petition shows on its face that a suit is barred by the statute of limitations, so that the defendant might take advantage of the statute by demurrer expressly invoking such a defense, a general demurrer on the ground that no cause of action is stated can not be taken as sufficient to raise the defense of a bar by the statute. Sammons v. Nabers, 186 Ga. 161, (3), 162 (197 S. E. 284); Smith v. Central of Ga. Ry. Co., 146 Ga. 59, 60 (90 S. E. 474); Lee v. Holman, 184 Ga. 694 (4), 696 (193 S. E. 68); Smith v. Aldridge, 192 Ga. 376, 380 (15 S. E. 2d, 430); Darnell v. Toney, 41 Ga. App. 673, 682 (154 S. E. 379), s. c., 39 Ga. App. 710 (148 S. E. 279); Felton v. State Highway Board, 47 Ga. App. 615 (2), 619 (171 S. E. 198). Accordingly, even though the instant petition by a wholesale liquor *856 dealer to enjoin the collection of ad valorem taxes by the City of Atlanta, imposed on the dealer’s liquors, shows that the petition was not filed within twenty days after notice by the city to the petitioner as to the assessment on the property, as required by the act of 1939 amending the city charter (Ga. L. 1939, pp. 830-832), no question as to the bar of the suit by the limitation in the statute was raised by the demurrer on the ground that the petition “sets forth no cause of action against defendant, and alleges no facts sufficient to justify the intervention of a court of equity in this case.” And it is unnecessary to decide whether conduct by the municipality in negotiating with the taxpayer as to the proper amount of assessment, after notice thereof, could suspend the period of limitation, or relieve a taxpayer of the bar, or whether in this case the averments of the petition were sufficient to show any such acts of continued negotiation by the city. Under Federal laws existing in 1939, the tax year in question, prior to later statutes enlarging taxes, the excise or stamp taxes imposed by the Government on distilled and other liquors were payable before the liquors could legally pass into the hands of dealers or purchasers. 26 U. S. Code Ann. §§ 2800(a, 1), 3030(3, b), 3150(b). The State likewise requires such payment before distilled spirits can be taken from a State warehouse. Ga. L. Ex. Sess. 1937-38, pp. 103, 107; Code Supp. § 58-1015. Such taxes, even though they may in effect have been “passed on” ultimately to the purchaser by an increase in the purchase-price covering the amount of tax, were an element of cost, first to the dealer and then to the purchaser, by this increased amount which each was required to pay. In determining the cost to the dealer, it is immaterial whether he or the manufacturer paid the stamp tax under the arrangement between them, since in either event the amount paid became part of the actual cost to the dealer. Since the City of Atlanta was authorized under its charter to levy and collect “an ad valorem tax on all . . personal property” (Ga. L. 1874, p. 122, § 25), which amount would ordinarily be based on the true market value in the usual course of trade (Code, § 92-4101; 26 R. C. L., § 323), and since in ascertaining such value every fact and circumstance bearing thereon should be considered (State ex rel. Guilbert v. Halliday, 61 Ohio, 352 (56 N. E. 118, 49 L. R. A. 427), and since liquors on sale'without payment of the tax required *857 to make a sale lawful would be illegal and valueless in the ordinary course of trade, but their value would be augmented to the extent of such a paid tax, the city in this case was authorized to require that such taxes, increasing to that extent the cost to the dealer, should be included as an element in assessing the value of the liquor. Accordingly, the petitioning wholesale dealer was not entitled to deduct these amounts from the total price paid, upon its contention that such an assessment in effect compelled the dealer to pay a tax upon the government taxes already paid, and not upon the property. The apparently few pertinent decisions seem to support with unanimity this conclusion. Lehman v. Grantham, 78 N. C. 115, 116 (88, 89); Williams v. Iredell County Commissioners, 132 N. C. 300 (43 S. E. 896). There are also cases holding that where a special percentage tax on the sale price of an article is imposed on the manufacturer or the dealer, and the amount of tax is in effect “passed on” or “buried” in the sale price charged to purchasers, neither the-manufacturer, dealer, nor the purchaser is entitled to recover the amount of the special tax or deduct it from ad valorem or other taxes; but that the special tax, like other expenses, was an element entering into the cost of the product. Lash’s Products Co. v. U. S., 278 U. S. 175, 176 (49 Sup. Ct. 100, 73 L. ed. 251); Shearer v. Commissioner of Internal Revenue (C. C. A.), 48 Fed. 2d, 552, 554 (4, 5); Heckman v. Dawes &c. Co., 12 Fed. 2d, 154; Cudahy Packing Co. v. U. S., 37 Fed. Supp. 563, 571; State ex rel. Byers-Prestholdt Motor Co. v. Minnesota Tax Com., 178 Minn. 300 (227 N. W. 43). Under the immediately preceding ruling, the court properly dismissed the action on general demurrer. Judgment affirmed. All the Justices concur.