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NOVAK v. REDWINE, Commissioner.
Action for refund of sales tax. Before Judge Vaughn. DeKalb Superior Court. May 25, 1953.
A casual and isolated sale made by one not engaged in the business of selling tangible personal property at retail is not taxable under the Retailers' and Consumers' Sales and Use Tax Act (Ga. L. 1951, p. 360; Code, Ann. Supp., Ch. 92-34A).
The plaintiff in error, Joe Novak, filed suit in the Superior Court of DeKalb County against Charles D. Redwine, as Commissioner of the Department of Revenue of Georgia, alleging in substance that, on May 20, 1952, Novak was the owner of certain bakery and store fixtures which had been used by him in the operation of a retail bakery store; that on that date he assigned and transferred this property to another for a consideration of $3,000, and was not engaged in the business of selling bakery and store fixtures nor engaged as a dealer in such commodities; that, on August 25, 1952, a total tax of $104.85 was levied upon him by the Sales Tax Unit of the Department of Revenue, which he paid; that thereafter he filed a claim for refund; that this claim, after hearing, was disapproved, and that this decision was erroneous.
A general demurrer was interposed to the petition and, after hearing, was sustained and the petition dismissed. The exception is to this judgment.
Under these definitions, the plaintiff in error is liable for a 3% sales tax on his bakery stock and fixtures plus interest, in the amount of $104.85 if he engaged in the activity of selling personal property for purposes other than resale as an activity the object of which was gain, benefit, or advantage to himself. It is the contention of counsel for the Revenue Department that the definition of "business" as "any activity engaged in by any person . . . with the object of gain, benefit, or advantage" so limits the term, "every person who engages in the business of selling," as to make it applicable to a single casual or isolated transaction not connected with one's trade or business generally. Nevertheless, the definition of the word "business" as stated in the act is closely identifiable with the definition of the word which is given by Black's Law Dictionary as "that which occupies the time, attention, and labor of men for the purpose of a livelihood or profit," and which is the commonly accepted meaning of the term. The definition of "business" as stated in the statute does not say "any act engaged in for gain," but rather "any activity." Webster's New International Dictionary lists as synonyms of activity the words occupation and business. Accordingly, no definitive distinction can be drawn between the definition of business as used in the statute, and that of its common and accepted meaning.
Further, revenue statutes are to be construed strictly so as to resolve doubt in favor of the taxpayer, and their meaning is not to be extended by implication. Redwine v. U. S. Tobacco Co., 209 Ga. 725 (75 S. E. 2d 556); Publix-Lucas Theaters v. City of Brunswick, 206 Ga. 206 (56 S. E. 2d 254); Fulton Metal Bed Mfg. Co. v. State Revenue Commission, 52 Ga. App. 159 (182 S. E. 803); City of Savannah v. Hartridge, 8 Ga. 23. Under this rule, any doubt as to whether the definition of the word "business" as "any activity engaged in" was meant to narrow the word down to include a single transaction, instead of its ordinary meaning of continuity of transaction, should be resolved in favor of the taxpayer.
A further rule of construction, that the statute is to be taken as a whole, tends to support this proposition. Under Code (Ann. Supp.) 92-3422a, any dealer liable for any tax under the act, who shall sell out or quit the business, is to make a final return as of the date of selling out the business, and the purchaser shall withhold such tax from the purchase money or be "liable for the payment of the taxes, interest and penalties accruing and unpaid on account of the operation of the business." Under 92-3424a, it is declared to be the intention of the act to tax gross proceeds of leases and rentals of tangible personal property where the same are "part of the regularly established business." Section 92-3444a requires that every person who desires "to engage in or conduct business as a seller in this State," shall apply for a certificate of registration for each place of business. Under 92-3404a, a dealer is one who "sells at retail . . . tangible personal property as defined in this Chapter"; and, under 92-3403a K, a retailer "means and includes every person engaged in the business of making sales at retail." From the act itself, therefore, the intention is clear that it is the gross proceeds from retail sales carried on as a business or occupation which is designed to be taxed. This conforms to the general rule of law that the words "engage in business" imply an element of continuity or habitual practice. Supreme Malt Products v. United States, 153 Fed. 2d 5 (1). It is well established in this State that the doing of a single act pertaining to a particular business is not ordinarily the equivalent of engaging in or carrying on a business. Lichtenstein v. State, 34 Ga. App. 138 (128 S. E. 704); Southern Cotton Oil Co. v. Dukes, 121 Ga. 787 (7) (49 S. E. 788); White v. Sikes, 129 Ga. 508 (59 S. E. 228); Theus v. State, 114 Ga. 53 (39 S. E. 913); Williams v. City of Tifton, 3 Ga. App. 445 (2) (60 S. E. 113); Kimmel v. Mayor &c. of Americus, 105 Ga. 694 (2) (31 S. E. 623).
The sale by the plaintiff in error of his bakery fixtures and equipment after he had ceased to do a bakery business, which sale was not a transaction by one engaged in the business of buying and selling bakery fixtures and equipment, was not taxable, and the trial court erred in sustaining the general demurrer to the petition seeking a refund of the amount of tax levied and collected by the defendant in error.
Judgment reversed. Felton, C. J., and Nichols, J., concur.
Eugene Cook, Attorney-General, Geo. E. Sims, Jr., Assistant Attorney-General, contra.
J. Lundie Smith, B. Lamar Tillman, for amicus curiae.
Abraham J. Walcoff, for plaintiff in error.
Saturday May 23 03:45 EDT

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