584 S. R. THOMAS AUTO CO. V. WISEMAN, [192 'COMMISSIONER OF REVENUES. S. R. THOMAS AUTO COMPANY V. WISEMAN, COMMISSIONER OF REVENUES. 4-4329 Opinion delivered April 13, 1930. STA'TUTES—CONSTRUCTION OF.—Statutes Will be construed as operating prospectively only, unless the legislative intent that they should operate retrospectively is manifest from the terms thereof ; the Sales Tax Act must, therefore, be held to operate prcispectively only. 2. TAXATION—SALES TAX.—The Sales Tax Act (Acts 1935, p. 591) imposed a tax upon all sales at retail of tangible personal property (unless exempted therefrom). So automobiles, whether old or new, sold subsequent to the effective date of the act, are subject to the tax, unless received as part of the purchase price of other cars, since the act became effective. Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor ; affirmed.
ARK.] S. R. THOMAS AUTO CO. v. WISEMAN, 5S5
'COMMISSIONER OF REVENUES. Owens (0 Ehrman and E. L. McHaney, Jr., for appellants. Carl E. Bailey, Attorney General, Thomas Fitzhugh, Assistant, and Millard Alford, for appellee. SMITH, J. The appellants in this case are corporations engaged in the retail automobile business in the city of Little Rock. Each of them had been in business for some time prior to July 1, 1935, the date on which act 233 of the Acts of 1935 (Acts of 1935, page 951), commonly referred to as Sales Tax Act, became effective. They had each acquired a number of second-hand automobiles received in part payment for new. ones before tbat date. The only question presented on this appeal is whether used cars so acquired by appellants before July1, 1935, and sold by them after that date, are subject to the sales tax. These dealers seek exemption from the payment of this tax under sub-division "i" of § 3, of act 233 which reads as 'follows : "The test of a sale at retail is whether the sale is to a consumer for use and not for resale. Sales of goods which, as ingredients or constituents, go into and form a part of the tangible personal property for resale by the buyer are not within the act; also sale of tangible personal property where other property is accepted as part of purchase price, such personal property so accepted to be resold, is not subject to tax." The appellant dealers had sold a number of these cars after the act became effective, which they had on hand prior to that date, and they sought by this proceeding to restrain the commissioner of revenues from attempting to enfOrce payment of the tax on such sales. A demurrer to the complaint praying this relief was sustained, from which decree is this appeal. It was alleged in the complaint that the commissioner of revenues had properly ruled that automobiles accepted in trade after July 1, 1935, were not subject to the sales tax when resold because such sales are specifically exempted from the tax by the paragraph of the act above quoted: It is argued that this exemption from the tax applies to all sales of cars taken in part payment of other cars, whether they were acquired before or subse-
586 S. R. THOMAS .AUTO . CO. v. WISEMAN; [192 COMMISSIONER OF REVENUES. quent to July 1, 1935, and that. to construe the act otherwise leads to the anomalous result of a dealer having cars acquired in',an. identical manner, on some of 'which a sales tax must , be . paid ; . on others not.. • But it is not the acquisition of the car by the dealer for sale which is taxed. It is the sale thereof by the dealer upOn which he Must collect and accOunt for the tax imposed upon that tranSaCtien. 'The firSt . Sentence of the paragraph aboVe quOted iS that: "The test' of a sale at retail iS whether the Sale iS to a 'cOnstmer for use and not for' resale." The taX here sought 'to be collected is upon such a sale. The' cOmmissioner seeks to' collect the tax 'upon Oar§ that haVe been sold'sinee' July .1,' 19'35, and these sales are taxable UnleSs an exemption iS*,found in the paragraph of the 'act above quoted. It i g . not with-Ott ' significanee that the car, 'the sale of which is eXemPted from 'the 'tax, is the': car 'which "iS ,accepted part of the purchase • Price " and not ears Which were or had been 'sO accepted: The tax is dne c011ectible 'at the - time the sale' iS made. All statnies have proSpectiVe operatien 'only unleSs the terra§ thereof clearly shoW' a legislative intention that they ShoUld ' operate '''rettd-spectively.. 'School District No. 41 v. Pope County Board of EducatiOn, 177 -Ark: 982; 8 S. W. (2d) 501. • . The Sales Tax Act must be • so 'conStined. In .the recent case of Wiseman, Commissioner v. Madison-Cadillac Company, 191 Ark: 1021, 88 S. W. (.2,d) 1007, the contention was made that no-tax was, collectible upon the, sale of automobiles,, whether . old : or new, for the reason, there urged that, at the time of the passage of the, sales tax' law, there was_ already , imposed a privilege or license upon. automobiles. W. held against that contention and' in •so holding, said •that in-all cases of doubt as to • the inclusion of particular property within the terms of -a: revenue statute, the presumption was , in favor of the taxing pOwer" and the burden was upon the claimant to establish clearly his right of exemption. This statethent •a& reaffirmed in . the still-later case of :Wise-man v. Ark. WholeSale Grocers Association; ante. p: 313, 90 . S. W: (2d) 987.... •
587 • It is no doubt true,. as counsel for appellants say in their brief, that the General Assembly was advised that sales of automobiles 'are dommonly made by taking an old car in part payment of a new * one, and that is true also of numerous Other . articles. ; It is argued therefore that when the tax is ! Collected and : reported on the tdtal sales price , on •a new car, it 'would be double taxatiOn to tax the subsequent sale : of the old car which had 'been received. in part payment of the , new' one: - ; .• The' first answer to . ithis: argument, : Which suggests itself,.is that no attempt iS being made to collect the tax on. -the sale of the neW carS made before . July 1, 1935, in part .paynient of whichl the old cars were . received, but sold subsequentto otha , date:: The Second answer is that we• find no authority , fOr the exemption in the act. • The tax is Unposed Upon :'f all sales .at retail' of tangible personal property'.' (Unless exempted :therefrom:). •• Paragraph 'f A," § .4; act 233 of 1935, p. 593. •AutomObiles, whether old or new . , sold subsequent to the . effective date ofthe act, 'are subject to the tax, unless received as part of the purchase price, since the act became effective. The 'appellant retailers• • should' have eolleeted the tax with which the revenue comMissiOner here charges them. Section '10 of the act (p. '597) requires the retailer -who neglects, fails or -refuses to colledthe tax from his purchaser, to pay it himself. .. . • •The decree. here appealed from . so ordered:, and, as it is correct; it ;must, be affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.