Collins v. Adair Roofing, Inc.

[808]Opinion

CAMPBELL, J.* This is an action to recover the sum of $22,644.86 paid under protest by respondent’s assignor International Paper Company (hereafter IPCO) for the use taxes applicable to the storage, use or consumption of wooden shingles purchased by the appellant Adair Roofing, Inc. (hereafter Adair) from IPCO. IPCO is a foreign corporation with no offices, employees or agents within the State of California. Adair is a California corporation doing business in California.

Over a period of time Adair purchased wooden shake shingles from IPCO for a total purchase price of $452,894.11. The shingles were purchased for use and were used by Adair, and were not for resale. The price quoted to Adair by IPCO and paid by Adair to IPCO was “net.” The purchase order confirmations and invoices contained the following language: “Any sales, use or transport tax is for buyer’s account.” The trial court held that the quoted language was clear and unambiguous and we agree. The quoted language constituted a clear and unambiguous statement to Adair from IPCO that IPCO was not collecting any use tax from Adair. There was no conflict in the evidence and the court properly found that IPCO had not collected the use tax from Adair pursuant to Revenue and Taxation Code section 6201 et seq.

The court found in favor of IPCO and made findings of fact and conclusions of law, and a judgment for the amount of the prayer was entered for IPCO and against Adair. In the court’s memorandum of intended decision, the court made it clear that it was following the mandate of Brandtjen & Kluge v. Fincher, 44 Cal.App.2d Supp. 939 [111 P.2d 979], a 1941 case decided by the Appellate Department of the Los Angeles Superior Court.

The facts of the Brandtjen case are indistinguishable from the instant case in all material respects.

Adair contends that the Brandtjen case was wrongly decided, and that we should disapprove of the statements of law therein contained, and reverse the judgment.

[809]Appellant concedes, as he must, that Brandtjen has been cited with approval in many subsequent cases, e.g., Bank of America v. State Bd. of Equal. (1962) 209 Cal.App.2d 780 [26 Cal.Rptr. 348]; Montgomery Ward & Co. v. State Bd. of Equalization (1969) 272 Cal.App.2d 728 [78 Cal.Rptr. 373]; Beneficial Standard Life Ins. Co. v. State Board of Equalization (1962) 199 Cal.App.2d 18 [18 Cal.Rptr. 432]; Xerox Corp. v. County of Orange (1977) 66 Cal.App.3d 746 [136 Cal.Rptr. 583], but he contends that each of those cases was a sales tax case and not a use tax case, and therefore the citations with approval were dicta. We have reviewed the Brandtjen case in detail and find that it was correctly decided.