Hayward Building Material Co. v. State Board of Equalization

PEEK, J.

This is an appeal by defendant from a judgment in favor of plaintiff in an action brought by it to recover taxes alleged to have been improperly assessed under the Sales and Use Tax Law (Rev.

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Tax. Code, § 6001).

There is no dispute as to the essential facts, which appear by stipulation of the parties. Additional facts in amplification of the stipulation appear from the testimony of the one witness called by plaintiff, its president. The record so presented shows without conflict that plaintiff was in the business of furnishing wet-mix concrete and asphalt to construction contractors. Its method of operation was to purchase the dry ingredients of the concrete, such as cement, rock, sand, gravel and other additives, which it would compound at its plant. Upon receiving an order for concrete, the raw ingredients, according to specifications, were combined with water in a rotating drum attached to a truck and transported from the plant to the building site. By the time of arrival the mixture had become wet-mix concrete, ready to be discharged from the mixing drum on the truck into forms at the job site. Plaintiff did not in any way participate in the building of the forms, their location at the job site, or their removal after the concrete had hardened. All tamping, troweling, leveling, finishing of the concrete, or other handling when required, was done by the contractor. The only employee of plaintiff customarily at the job site was the truck driver whose sole duty was to spot the truck and pour the concrete into the forms as directed by the contractor.

The procedure followed as regards the asphalt sold by plaintiff was substantially the same. The total mixing operation, however, took place in plaintiff’s plant, and thereafter the asphalt was transported by dump truck to the job site. In accordance with the contractor’s instructions, the asphalt was dumped either on the ground or in front of a paving machine which did the spreading. Any spreading, leveling or compacting was done by the contractor and not by the plaintiff.

During the period from July, 1946, to September, 1949, plaintiff furnished various construction firms with $902,302.29

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