Sauers Wholesale Co. v. Collins

PETERS, P. J. This action was brought by Sauers Wholesale Co. to recover deficiency excise taxes collected by the State Board of Equalization under the Alcoholic Beverage Control Act. (Stats. 1935, p. 1123, ch. 330; Deering’s Gen. Laws, 1937, Act 3796.) The plaintiff during the period July 1, 1935, to June 30, 1937, was a duly licensed distilled spirits rectifier and distributor engaged in business in California, and, as such, for the two-year period above-mentioned paid to the state large snms of money under the tax statute here involved. Some time after July 1, 1937, the auditors of the board made an audit and examination of the books and records of the plaintiff. As a result of this audit and examination the board determined that for the two years in question there was due and owing from plaintiff an additional tax of $1,722.09. The plaintiff thereafter petitioned for a relevy of the tax and demanded a hearing, which was granted. The board thereafter determined that the above-mentioned sum was due from plaintiff. This sum was paid by the taxpayer under protest and this action instituted to recover the amount so paid. The trial court rendered judgment for the taxpayer for the total amount of $1,722.09. The trial court did not make specific findings concerning the items making up the total of the judgment. It was the theory of the trial court that prior to July 1, 1937, there was no provision of law authorizing the proceedings taken by the board against plaintiff.

On this appeal many of the points discussed are identical with those raised in the two Rathjen Bros, cases, Civ. 11911, ante, p. 765 [123 Pac. (2d) 925], and Civ. 11912, ante, p. 774 [123 Pac. (2d) 930] ; in fact, by stipulation the cases have been submitted on the same briefs. No useful purpose would be served by repeating what was said in those two opinions. For the reasons therein set forth, it is obvious that the judgment here appealed from must be reversed.

There are certain items in the alleged deficiency peculiar to this case. According to the report of the auditors the total deficiency of $1,722.09 was made up of the following items:

A. Salesmen’s Samples.....................$ 36.72

B. Sales to retail licensees not accompanied by

proper amount of stamps................ 51.32

C. Unaccounted for disposals................ 1,634.05

As to the first item—salesmen’s samples—the court made no finding as to the facts, no such finding being required [788]