Wally's Wagon, Inc. v. State Tax Commission

TUCKETT, Justice: This matter is before the court on a writ of certiorari to review a decision of the State Tax Commission assessing a sales tax deficiency against the plaintiff. In 1964, Wally’s Wagon, Inc., the plaintiff herein, entered into the business of vending ice cream. In the furtherance of that business the plaintiff acquired 20 motor vehicles with refrigerator compartments and entered into agreements with various persons to sell ice cream and other products at retail throughout the Salt Lake area. The plaintiff prepared an agreement which was executed by the plaintiff and the operator of each of the vehicles. The operators who were under the age of 21 years obtained the signature of a parent or guardian to guarantee the performance of the contract. The contract prepared by the [229] plaintiff is of considerable length, and we deem it unnecessary to set it forth in its entirety. We do, however, mention some of the essential terms and conditions of the contract. The contract provided that the motor vehicle would be leased to the operator, and as a consideration for the use of the same the operator agreed to purchase ice cream and similar products exclusively from the plaintiff. The contract provided that the plaintiff would pay the costs of operation of the vehicle and carry insurance to protect the operator. The operator of the vehicle designated in the contract as “contractor” agreed to pay cash for the ice cream and other products purchased from the plaintiff, and it further provided that title to the products passed at the time of delivery to the operator. Other terms of the contract provided that the operator might be extended credit by the plaintiff, and that a settlement for the purchases would be had weekly. The contract provided that each operator was to deposit with the plaintiff a cash bond in the sum of $15 to guarantee the faithful performance of the contract, and to deliver the motor vehicle to the plaintiff’s place of business at the end of each day. It was provided that the contract might be terminated by either party upon three days’ notice and that the plaintiff might also terminate the agreement upon the failure of an operator to pay the rent specified in the contract. After a hearing the Tax Commission concluded that the sales of ice cream and other products by the plaintiff were retail sales and that sales tax deficiency should be assessed against the plaintiff. It would appear that the Commission made its determination that the operators were not independent contractors upon the following facts: (1) that the plaintiff paid the cost of operation of the vehicles; procured the necessary licenses; and the vehicles were stored at the plaintiff’s premises when not in use; (2) that each vehicle carried a sign which indicated that the vehicle was a Wally’s Wagon; that each vehicle displayed a list of goods and prices; (3) that each vehicle was stocked daily with the products at the plaintiff’s place of business and that an accounting was had weekly with each operator; that the operator incurred no expense in the operation of the vehicle; and that at times the operator was supplied money with which to make change; and (4) that the plaintiff suggested geographical areas in which each operator was to sell the products. It appears to us that the contract before us was carefully drawn for the purpose of creating a relationship of independent contractor and that it was clearly intended to preclude a claim that a master-servant relationship would exist between the parties. The findings of the Commission as above set forth are insufficient on which to base a determination that the plaintiff and the [230] operators departed from the provisions of the contract in such a manner and to such an extent that a master-servant relationship was created which would make the plaintiff liable for the payment of sales taxes.1 It is contended by the Tax Commission that the plaintiff’s proceedings before this court should be dismissed, as it failed to comply with the requirement of Section 59-15-16, U.C.A.1953, as amended. The record indicates that prior to the hearing before the court on the merits the Tax Commission moved to dismiss the proceedings on that ground. The motion to dismiss was by the court denied without reservation. It would seem that that issue has already been decided and needs no further comment here. The decision of the defendant State Tax Commission is reversed. No costs awarded. CROCKETT, C. J., and CALLISTER, J., concur. HENRIOD, Justice: I do not participate, save to say that the court ducks what I think to be the most important issue of this case: The validity of the statute cussed and discussed in the Hinckley case (Hinckley, Inc. v. State Tax Comm., 17 Utah 2d 70, 404 P.2d 622, 1965), which statute and the regulations anent thereto lead to a completely unrealistic and unjudicial conclusion, as I tried to point out in my dissent in that case. So: The only lament I have here is to say that when this court avoids that issue, I forgive its members for “I [sic] know not what they do.” Footnotes [1] Christean v. Industrial Comm., 113 Utah 451, 196 P.2d 502; Stover Bedding Co. v. Industrial Comm., 99 Utah 423, 107 P.2d 1027, 134 A.L.R. 1006.