People v. Nymer

FOX, J. pro tem. This is an action- by the People to recover upon an alleged liability for sales taxes under the California Retail Sales Tax Act of 1933, as amended. From a judgment in favor of the defendants the People have appealed.

From April 1, 1935, to and including April 30, 1936, defendant Nymer engaged in the sale of tangible personal property at retail in the city of Los Angeles. During this period he filed quarterly retail sales tax returns and paid the tax shown to be due thereon. From April 1, 1936, to June 29, 1937, defendant Nymer also engaged in the sale of tangible personal property at retail in the city of San Diego. He filed quarterly retail sales tax returns for the latter business from April 1, 1936, to and including March 31, 1937, but did not file a return for the period commencing April 1, 1937, to and including June 29 of that year. The State Board of Equalization was not satisfied with the returns filed by Nymer and made an audit of the businesses conducted by him during the aforesaid periods. Under the authority granted by section 17 of the Retail Sales Tax Act, the board made an additional assessment of tax due from his operations at each place. From his Los Angeles business the additional tax assessed was $558.10, together with $55.65 interest and a 10 per cent penalty of $55.82 for negligent or intentional disregard of the Retail Sales Tax Act. From Nymer’s San Diego business the additional tax assessed was $1,372.88, together with $47.29 interest and a penalty of $39.00 for his failure to file [552]a return for the fractional quarter ending June 29, 1937. Within the time allowed by the Act Nymer filed a petition for reassessment of each of the above assessments. On September 29, 1938, the board denied his request for adjustment of said assessments. Notices thereof were mailed to Nymer by the board on October 10, 1938. Nymer failed to pay the assessments within thirty days after service upon him of the notices of reassessment and a penalty of 10 per cent of the amount of the tax was added to each assessment under the authority of section 20 of the said act. No part of these assessments having been paid the People filed this action to collect the same on March 12, 1941.

The trial court found that the three-year statute of limitations provided by section 30 of the act commenced to run on August 27, 1937, the date of mailing of the original notices of assessment to Nymer, and that since this action was not filed within three years from that date the plaintiff’s right to recover on said assessments was barred. The People, however, contend that the statute of limitations did not begin to run until thirty days from October 10, 1938, the date upon which the notices of reassessment were mailed Nymer because, they argue, it was at that time that the tax, penalty and interest assessed against him became final, due and payable, and the penalty for nonpayment attached. Hence the statute of limitations had not run. The position of the People must be sustained.