Brandtjen & Kluge v. Fincher

44 Cal.App.2d Supp. 939 (1941) BRANDTJEN & KLUGE, INC. (a Corporation), Appellant,

v.

C. F. FINCHER, Respondent.

California Court of Appeals.

April 2, 1941. Catlin & Catlin for Appellant.

Nixon A. Lange and Arch G. McLay for Respondents.

SHAW, P. J.

In each of these cases the plaintiff appeals from a judgment entered against it after a demurrer to its amended complaint had been sustained without leave to amend. The complaints are identical except for names of defendants, dates and amounts of interest and penalties, and statements of facts hereinafter made must be understood as applying to both cases. In each complaint it is alleged, in [44 Cal.App.2d Supp. 941] substance, that the plaintiff, being a retailer maintaining a place of business in this state, in 1936 sold a printing press to the defendant at St. Paul, Minnesota, for use in this state, at a price on which the use tax would be $60.72, that the defendant has not paid the use tax, and that the plaintiff, by virtue of a judgment obtained against it by the state, has been compelled to pay to the state said tax, with interest and penalties, all of which plaintiff seeks to recover.

The use tax is provided for by a statute of 1935, designated as the "Use Tax Act of 1935," (Stats. 1935, p. 1297; Deering's Gen. Laws, 1935 Supp., Act 8495a). It has since been amended but as this case arose before the amendments they are not material, except as hereinafter stated. The act provides: "An excise tax is hereby imposed on the storage, use or other consumption in this State of tangible personal property purchased from a retailer on or after July 1, 1935, for storage, use or other consumption in this State at the rate of three per cent of the sales price of such property. Every person storing, using or otherwise consuming in this State tangible personal property purchased from a retailer shall be liable for the tax imposed by this act, and the liability shall not be extinguished until the tax has been paid to this State." Section 3. Detailed provisions for enforcing this liability are made by various sections. Section 6 provides that "Every retailer maintaining a place of business in this State ... shall at the time of making such sales collect the tax imposed by this act" and "The tax herein required to be collected by the retailer shall constitute a debt owed by the retailer to this State." Section 7 requires every such retailer to pay such tax to the state within a certain time limit and, with other sections, sets up a procedure for compelling him to do so. In behalf of the defendants it is contended that, by reason of the provisions of section 6, the plaintiff merely discharged its own debt when it made the payment to the state and hence there is no basis for a recovery by it from defendants of the amount so paid.