Hillmert v. State Board of Equalization

WOOD, P. J. This is an action.against the State Board of Equalization for recovery of money paid, under protest, as taxes on the use of fuel in operating trucks upon the highways. A cross-complaint was filed by the People of the State of California on behalf of the Board of Equalization and Controller for recovery of money which allegedly had been refunded erroneously to plaintiff after plaintiff had paid motor vehicle transportation taxes under protest.

Judgment was in favor of defendant upon the complaint, and in favor of cross-complainant upon the cross-complaint. Plaintiff (and cross-defendant) appeals from the judgment.

On November 30, 1955, the Mack Motor Truck Corporation in Dallas, Texas, entered into an agreement to sell a new Mack truck to G. W. Siler who was doing business as Waco Mack Sales in Waco, Texas. The seller took a chattel mortgage on the truck to secure the unpaid part of the purchase price.

On December 5, 1955, Siler leased the truck to Pete Childress, of Houston, Texas, for one year, and made an informal agreement with Childress to the effect that upon payment of a certain amount of money title to the truck would pass to Childress subject to the chattel mortgage held by the Mack Motor Truck Corporation.

Childress operated the truck on highways in California and other states from December 5, 1955, to August 3, 1956, and by reason thereof incurred liability to the State of California for use fuel taxes and transportation taxes. Also during that time, and for approximately a year prior thereto, he also operated three other trucks on California highways and by reason thereof he had incurred liability to the State of California for use fuel taxes and transportation taxes.

On August 3, 1956, the Mack truck was returned to Mack Trucks, Inc. (formerly Mack Motor Truck Corporation), which thereafter (on September 19, 1956) sold the truck to plaintiff Hillmert, of San Antonio, Texas, for $14,500—the unpaid balance of the original purchase price stated in the agreement to sell to Siler.

Plaintiff then (September 1956) began operating the Mack truck on the highways of California and other states. About [580]January 28, 1956, while the truck was in Redding, California, representatives of the State Board of Equalization and the Controller seized the truck, claiming a lien on it for use fuel taxes and transportation taxes which had accrued in connection with the use of that truck and the three other trucks which had been operated by Childress. In order to secure the release of the truck, plaintiff paid, under protest, the delinquent use fuel taxes of $1,715.18 (including expenses of seizure) covering the period from November 1954 to September 1956, and paid the delinquent transportation taxes of $824.78. The amount due from Childress by reason of use of fuel in the Mack truck (only) was $292.32, plus penalties; and the amount due from him by reason of using the Mack truck (only) for transportation was $179.60, plus penalties.