Bigsby v. Johnson

GIBSON, C. J.

The plaintiff brought this action to recover taxes paid under protest under the Retail Sales Tax Act of 1933. (Stats. 1933, p. 2599; Deering’s Gen. Laws [1935], Act 8493; see Revenue and Taxation Code, Part I, Stats. 1941, eh. 36.) The complaint contained twenty-one causes of action upon five of which judgment was rendered for the plaintiff. The plaintiff originally appealed on all causes of action in which the decision was adverse to him, but the appeal brought on his behalf has subsequently been dismissed. The only issue remaining in the case, therefore, is raised by defendant’s appeal from a judgment in favor of plaintiff upon his seventeenth cause of action.

The plaintiff, Carl M. Bigsby, is engaged in the business of operating a printing establishment under the fictitious name of the Compton Printing Company. During the quarter-annual period ending December 31, 1935, he sold certain second-hand equipment that he had previously used in the operation of his printing plant. The equipment, which was sold for $25, consisted of a so-called Monomelt pot and its accessories. Plaintiff alleged that the sale of this equipment was purely incidental to the operation of his business and that he was not engaged in any way in the business of selling machinery or equipment. Plaintiff urged that since the sale of used equipment was merely incidental to his principal business and was made in order to salvage the investment upon machinery that he could no longer use, it was not the kind of sale that the legislature intended to tax under the retail sales tax statutes. From a judgment in favor of the plaintiff upon this cause of action the defendant appeals.

The defendant contends, upon this appeal, that the plaintiff was properly required to pay a retail sales tax upon his sale of used printing equipment. During the period with which we are concerned, the statute provided: “For the privilege of selling tangible personal property at retail a tax is hereby imposed upon retailers ... at the rate of three per cent of the gross receipts of any such retailer from the sale of all tangible personal property sold at retail in this state.

. . . ” (Deering’s Gen. Laws [1935], Act 8493, sec. 3; see, Revenue and Taxation Code, sec. 6051.) “Retailer” is defined

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