Cheney v. Frederick

Frank Holt, Associate Justice. This is an appeal by the Commissioner of Revenues of the State of Arkansas from an adverse decree of the Pulaski Chancery Court holding that a house trailer was not subject to the gross receipts tax claimed to be due to the State. The parties stipulated that appellees purchased a house trailer ou July 3, 1958 from a dealer, the Twin City Mobile Homes Company of North Little Rock, Arkansas, and since that date have used it for a home in such a manner as not to require licensing under the laws of the State of Arkansas; that no license has ever been issued; that the appellees did not report the purchase to the Commissioner and no gross receipts tax has ever been paid on the purchase by the appellees. It appears that the appellant had no knowledge of the sale until on or about October 28, 1963 when an auditor of the State Revenue Department made an assessment of the tax due. The appellees were given notice of the assessment of $207.49 and the intention of the Commissioner to file a Certificate of Indebtedness if the appellees did not pay the tax or request a hearing within the time allowed by law. When the appellees did neither, the Certificate of Indebtedness was filed against them on May 13, 1964 in the Circuit Court of Pulaski County. A few days later, appellees filed in Pulaski Chancery Court their petition requesting a temporary injunction to restrain the appellant from proceeding to collect the tax from them by enforcing the Certificate of Indebtedness. Appellees denied any liability for the tax contending that under the provisions of Ark. Stat. Ann. §84-1903 (Repl. 1960) the Gross Receipts Tax does not apply to a trailer which is not required to be licensed and, further, even if such tax were due and payable at the time of the sale the appellant was barred from collecting the tax by the Statute of Limitations. Ark. Stat. Ann. §84-1910 (a). The Chancery Court upheld the appellees on both of their contentions and from the decree making the injunction permanent this appeal arises. For reversal appellant relies upon Ark. Stat. Ann. §84-1903 (a) which levies a 3% sales tax upon all sales of “tangible personal property”. Appellant ably and strenuously contends that the Act specifically provides that the gross receipts tax applies to the “sale” of a house trailer not requiring a license since it is tangible personal property. Even so, the Act makes the seller and not the purchaser, the consumer, liable to appellant for the tax. The seller is the tax collector in the sale of tangible personal property. This burden of collecting, reporting and remitting the sales tax was held by us to be reasonable and practical in the case of Wiseman v. Phillips, 191 Ark. 63, 84 S. W. 2d 91. The rationale behind the legislative requirement that the seller is liable for the collection of the sales tax is well expressed in Arkansas Power & Light Co. v. Roth, 193 Ark. 1015, 104 S. W. 2d 207: ‘ ‘ The enforcement of the law would be impracticable if the Commissioner were required to collect from the consumer, for obvious reasons.” In reviewing this statute we find no provision authorizing the appellant to proceed against the consumer, as in the case at bar, by issuing and enforcing a Certificate of Indebtedness against him for his failure to pay the sales tax. Certainly, it would be impractical and unreasonable to expect the consumer, the buying public, to know when a sales tax is owed and, if so, to whom it should be paid. Under the clear provisions of the statute the onus of collecting the gross receipts sales tax has been placed upon the seller except and only when the article sold is required to be licensed, in which event the consumer is required to pay the tax to the Commissioner before a license can be issued. It is admitted that the trailer in question was not required to be licensed since it was not used upon our highways. Thus, there was no duty upon the appellees, as buyers, to pay the appellant the claimed tax. In connection with the payment of the tax, attention is directed to Act 146 of 1965. Having determined the appellees are not liable to appellant in the instant case, it becomes unnecessary for us to reach a discussion of the application of the Statute of Limitation. . Affirmed. Ward, J., dissents.