Coca-Cola Co. v. State Board of Equalization , 25 Cal. 2d 918 ( 1945 )

EDMONDS, J.

The Coca-Cola Company, under protest, paid the amount of a sales tax which had been levied against it on account of the purchase of wooden barrels and kegs in which it sold its products. This action followed, and the question presented for decision upon the company’s appeal from an adverse judgment concerns the application of the Retail Sales Act of 1933 (Stats. 1933, ch. 1020; Deering’s Gen. Laws, 1937, 1941 Supp., Act 8493; now Sales and Use Tax Law, Rev. & Tax. Code, div. II, pt. 1) to such transfers.

By the terms of the statute as in effect at the time of the transactions in question, a tax is imposed upon retailers “for the privilege of selling tangible personal property” (§3). “Sale” is defined as “any transfer of title or possession, or both ... for a consideration” (§2, subsec. b); “retail sale” or “sale at retail” as “a sale to a consumer or to any person for any purpose other than for resale in the regular course of business” (§2, subsee. c), and “retailer” as “every person engaged in the business of making sales at retail. . . .” (§ 2, subsec. c.) The burden of proving that a sale of tangible personal property is not taxable is upon the vendor, unless he takes from the vendee a certificate that the property is purchased for resale. (§17.) ' “If a purchaser who gives such a certificate makes any use of such property other than retention, demonstration, or display while holding it for sale in the regular course of business, such use shall be deemed a retail sale by such purchaser. ...”

At the time of the sales upon which the state has made assessments, the appellant was engaged in the business of manufacturing and selling at wholesale the syrup which is the base of the drink sold under the trademark of “Coca-Cola.” In containers of various types, the syrup was sold to jobbers who in turn sold it in the original packages to retailers for use in making and dispensing the drink from soda fountains or less elaborate equipment. The Coca-Cola Company purchased the barrels and kegs from manufacturers in California. There was no reservation of title to the containers upon the sale of syrup to a jobber, nor was any charge made for the container.

The state bases its assessments upon the amount of the sales made by the manufacturer of the barrels or kegs, but charges Coca-Cola Company with liability for the tax because the appellant gave certificates of resale in the form prescribed by the statute. Under these circumstances, the parties agree, the responsibility for the payment of any tax legally collectible may be placed upon the Coca-Cola Company.

The theory. of the levy against the appellant is that by its use of the articles they became “self consumed merchandise” subject to the sales tax. It is conceded that the amount of the assessment is properly computed, that the appellant paid the tax and, after proper and timely application for a refund thereof, its claim for refund was denied.

Although there is considerable conflict in the authorities concerning the time when the sale of a container at retail occurs, in 1936 the Board of Equalization, acting in accordance with the authority vested in it by section 27 of the Retail Sales Act, supra, adopted a rule which declared the policy it would follow in administering the California statute. That rule, in varying form, was in force at the time of the transactions which are the basis of the appellant’s claim for refund. From January 22, 1936, to August 29, 1939, insofar as is pertinent, it read as follows: "Gross receipts from sales of containers such as fruit boxes, burlap sacks, bottles, cans and packing eases to growers, packers, bottlers and others who place the contents in the containers are not taxable if the containers are sold with the contents. ... If, however, the containers are not sold with the contents, as is generally the case with . . . containers upon which deposits are taken to insure their return, the gross receipts from the sale of containers are taxable.” At all times subsequent to August 29, 1939, the wording, insofar as is material to the present case, was: “The term ‘containers’ as used herein means the articles and devices in which tangible personal property is placed for shipment and delivery. . . . The term ‘returnable containers’ as used herein means those containers which are returned by the buyers of the contents and re-used by the packers, bottlers or sellers of the commodities contained therein. A container is classed as a returnable container if title to the container is retained by the packer, bottler, or seller of the contents or if the packer, bottler, or seller of the contents charges a deposit on the container. . . . The term ‘nonreturnable containers’ as used herein means those containers which are sold with the contents and are not returned by the buyers of the contents for re-use by the packers, bottlers, or sellers of the contents. . . . Gross receipts from sales of nonreturnable containers to persons who place commodities to be sold in such containers are sales for resale and, accordingly, are not taxable.” (Rule 10.)

Although not necessarily controlling, as where made without the authority of or repugnant to the provisions of a statute, the contemporaneous administrative construction of the enactment by those charged with its enforcement and interpretation is entitled to great weight, and courts generally will not depart from such construction unless it is clearly erroneous or unauthorized. (Shealor v. City of Lodi, 23 Cal.2d 647 [145 P. 2d 574] ; People v. Southern Pacific Co., 209 Cal. 578 [290 P. 25]; Riley v. Thompson, 193 Cal. 773 [227 P. 772]; Riley v. Forbes, 193 Cal. 740 [227 P. 768].) But the Board of Equalization now takes the position that its adoption of rule 10, construing the sales tax law to exempt the sale of nonreturnable containers to original users, was erroneous and contrary to the terms of the act. In any event, the board adds, the particular sales now in controversy are not within the meaning of the rule, for it does not appear that the barrels or kegs containing syrup were nonreturnable. However, the rule does not purport to exempt the sale of nonreturnable containers from taxation; it merely interprets the statute by explaining that the sale of “nonreturnable containers to persons who place commodities to be sold in such containers” is not a retail sale and is therefore not taxable. There is no provision in the statute requiring a tax to be paid upon such transactions and the sales of barrels and kegs by the cooperage companies to the Coca-Cola, Company clearly fall within the board’s rule.

The only evidence concerning the appellant’s business practices in regard to containers is the testimony of its auditor. He stated that the company reserved no title to the containers and made no separate charge for them. The contracts and invoices of the company confirm this fact. There is nothing to show that Coca-Cola Company ever required a deposit upon its containers or gave a credit for their return, or, indeed, that the kegs and barrels were in fact returned or returnable. Moreover, according to the record, the action was tried upon the theory that the containers were nonreturnable.

The Legislature has frequently amended the Retail Sales Tax Act, including section 2, which, among other things, defines “retail sale” and “sale at retail.” (Stats. 1933, p. 2599; Stats. 1937, p. 2223; Stats. 1939, p. 2170.) It may be presumed that these amendments were made with full knowledge of the construction which had been placed upon the statute by the Board of Equalization, yet there was no modification of the legislation which would require a contrary interpretation. This is a factor that may be considered in determining the meaning of the terms intended by the Legislature. (Federal C. Com. v. Columbia Broadcasting System, 311 U.S. 132 [61 S.Ct. 152, 85 L.Ed. 87]; Helvering v. Hallock, 309 U.S. 106 [60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368] ; Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110 [59 S.Ct. 423, 83 L.Ed. 536]; Old Colony R. Co. v. Commissioner of Int. Rev., 284 U.S. 552 [52 S.Ct. 211, 76 L.Ed. 484]; People v. Southern Pac. Co., 209 Cal. 578 [290 P. 25]; Colonial Mut. Comp. Ins. Co., Ltd. v. Mitchell, 140 Cal.App. 651 [36 P.2d 127]; Godward v. Board of Trustees, 94 Cal.App. 160 [270 P. 725].) And particularly because of the amendment made at the last session of the Legislature, the board’s construction of the act should be decisive of the present litigation.

Unquestionably because of controversies such as the one now before the court, in 1943 the Legislature amended the statute to expressly exempt nonreturnable containers. The new provision, section 6364 of the Revenue and Taxation Code, reads as follows: “There are exempted from the taxes imposed by this part, the gross receipts from sales of . . . (a) Nonreturnable containers when sold without the contents to persons who place the contents in the container and sell the contents together with the container. ... As used herein the term ‘returnable containers’ means containers of a kind customarily returned by the buyer of the contents for reuse. All other containers are ‘nonreturnable containers. ’ ’ ’ This change may be considered in determining the scope of the tax statute at the time of the transactions here involved for in view of an amendment to the Retail Sales Tax Act at a time when certain groups were resisting collection of taxes assessed against them, the court could infer a legislative intent to clarify rather than change the existing law. (Standard Oil Co. v. Johnson, 24 Cal.2d 40 [147 P.2d 577]; Union League Club v. Johnson, 18 Cal.2d 275 [115 P.2d 425].)

The judgment is reversed.

Gibson, C. J., Shenk, J., Traynor, J., and Schauer, J., concurred.