Telerent Leasing Corporation v. High , 8 N.C. App. 179 ( 1970 )

174 S.E.2d 11 (1970) 8 N.C. App. 179

TELERENT LEASING CORPORATION
v.
Sneed HIGH, Commissioner of North Carolina Department of Revenue.

No. 7010SC87.

Court of Appeals of North Carolina.

May 27, 1970.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. I. Beverly Lake, Jr., for Commissioner of Revenue of North Carolina, defendant appellee.

Broughton & Broughton, by Robert B. Broughton, Raleigh, for plaintiff appellant.

CAMPBELL, Judge.

Telerent first asserts that the imposition of a sales/use tax on the gross rental of a motel or hotel room as well as on the gross proceeds from the leasing of a television set located in that room constitutes double taxation, and should be held void. We hold that the taxes were properly imposed here, and at any rate do not amount to "double taxation."

First of all, "double taxation," as such, is not prohibited by the Federal or State Constitutions. Jamison v. City of Charlotte, 239 N.C. 682, 80 S.E.2d 904 (1954). We feel, however, that the levying of the two taxes in the instant case was not "double taxation" as asserted by appellant and as referred to in Jamison v. Charlotte, supra. It was stated therein that

"To constitute double taxation both taxes must be imposed on the same property, for the same purpose, by the same state, federal or taxing authority, within the same jurisdiction, or taxing district, during the same taxing period and there must be the same character of tax. * * *"

The appellant has misconstrued the meaning of the phrase "imposed on the same property" contained in the above definition, as applied to the facts of the instant case. It must be remembered that the Jamison case dealt with an ad valorem tax, Chapter 1034, Session Laws 1949, whereas we are dealing with a sales/use tax. There, the real or personal property of a single taxpayer was being taxed by different taxing authorities for the same purpose. Here two different incidents are being taxed.

The first levy here is upon the gross proceeds from the rental of a room, pursuant to G.S. § 105-164.4(3). The second levy is upon the lease of a television set which is located within that room, pursuant to G.S. § 105-164.4(2). The statutory language is as follows:

"G.S. § 105-164.4. Imposition of tax; retailer.—There is hereby levied and imposed, in addition to all other taxes of every kind now imposed by law, a privilege or license tax upon every person who engages in the business of selling tangible personal property at retail, renting or furnishing tangible personal property or the renting and furnishing of rooms, lodgings and accommodations to transients, in this State, the same to be collected and the amount to be determined by the application of the following rates against gross sales and rentals, to wit:

* * * * * *

(2) At the rate of three per cent (3%) of the gross proceeds derived from the lease or rental of tangible personal property as defined herein, where the lease or rental of such property is an established business, or the same is incidental or germane to said business; except that whenever a rate of less than three per cent (3%) is applicable to a sale of property which is leased or rented, the lower rate of tax shall be due on such lease or rental proceeds.

(3) Operators of hotels, motels, tourist homes and tourist camps shall be considered ``retailers' for the purposes of this article. There is hereby levied upon every person, firm or corporation engaged in the business of operating hotels, and every person, firm or corporation engaged in the business of operating tourist homes, tourist camps and similar places of business, a tax of three per cent (3%) of the gross receipts derived from the rental of any room or rooms, lodging, or accommodations furnished to transients at any hotel, motel, inn, tourist camp, tourist cabin or any other place in which rooms, lodgings, or accommodations are regularly furnished to transients for a consideration. The tax shall not apply, however, to any room, lodging or accommodation supplied to the same person for a period of 90 continuous days or more. Every person subject to the provisions of this section shall register and secure a license in the manner provided in subdivision (7) of this section, and, insofar as practicable, all other provisions of this article shall also be applicable with respect to the tax herein provided for." (Emphasis added)

Our Supreme Court has stated that taxes under G.S. § 105-164.4 such as are involved here are not imposed upon the consumer, but are rather a privilege tax for engaging in business. Piedmont Canteen Service v. Johnson, Comr. of Revenue, 256 N.C. 155, 123 S.E.2d 582 (1962). As such, the taxes here are imposed on the owner of the motel in the first instance and the lessor of the television sets in the second instance. It does not matter that the motel owner might conceivably collect the tax with the rental of the room and remit it to the State, as well as pay a tax on the lease of a television in the room, passed on to him by the lessor. Nor does it matter that the renter of the room will pay a tax which is based in part on proceeds arguably attributable to the presence in the room of a television set which was the basis of a sales/use tax levy on the lessor—the tax is, by its terms, levied upon the "retailer." There is, perforce, no double levy on any one object of taxation, since the two different sections of the sales/use tax impose two separate taxes on two separate people for two separate transactions: a lessor, for the gross proceeds of a lease, and a motel owner, for the gross proceeds of a room rental. The additional room charge when a television set is in the room is not the same amount which Telerent charges as rental. This argument is without merit.

Appellant, secondly, contends that the "lease" transaction here was a "sale for resale," exempted from the effect of G.S. § 105-164.4 since it would not be a "retail" sale. G.S. § 105-164.3(13). The burden of showing exemptions or exceptions from taxing statutes is upon the one asserting the exemption or exclusion. Olin Mathieson Chemical Corporation v. Johnson, Comr. of Revenue, 257 N.C. 666, 127 S.E.2d 262 (1962). The burden could be avoided by obtaining "resale certificates" from vendees, as provided for in G.S. § 105-164.28. This certificate was not procured by Telerent from any of its customers here, so is must allege and prove that its leasing activities fell outside the purview of the statute.

The question resolves itself to the inquiry as to whether the supplying of a television set to a guest in a room of a motel or hotel by the owner thereof constitutes a "sale" (or more properly, a "resale") to the transient renting the room. We hold that the leasing of a television set to a motel or hotel owner, as under the facts of this case, for use in a room rented to transients, is not a "sale for resale" as contemplated by the North Carolina Sales and Use Tax Act, G.S. § 105-164.1 et seq.

When a room is rented to a transient guest, it is common practice that the price of the room varies according to the accommodations furnished. For instance, a room with two double beds will usually rent for a higher rate than will one with a single twin bed. Likewise, it is conceivable that a room with a television set would rent at a slightly higher rate than a room similarly furnished, but without a television. It is clear, however, that there is no separate lease or rental of each furnishing which may appear in the room. The consideration paid is for the lodging or accommodation itself—not for a specific bed, lamp, painting, table, chair or television. While we find no pertinent North Carolina authority, we do agree with the reasoning in Atlanta Americana Motor Hotel Corp. v. Undercofler, 222 Ga. 295, 149 S.E.2d 691 (1966), construing a sales/use tax statute similar to ours. The hotel owner there contended that a sales tax was not due to be collected on items which it bought for use in its hotel rooms, such as furniture, television sets, carpeting and other personal property. In upholding the sales tax levy, the court stated:

"As we view it, Section 3 of the Act, in imposing the tax on charges for rooms, contemplates the room as a total, the complete room. The levy is on ``The sale or charges for any room or rooms, lodgings or accommodations furnished to transients * * *' Code Ann. § 92-3403a, supra. This encompasses whatever is rented—whether one room or several, whether bare or elaborately appointed.

Furthermore, the plaintiff's allegations here as to the personal property show that such property merged with and became part of its hotel rooms and that the charge made to its guests was for the use of the complete rooms. The property was, as alleged, ``Included in said hotel rooms * * *.'

Actually, the plaintiff itself used the property to make its rooms livable, and thus rentable to guests, and the fact that a part of the charge for the rooms was allegedly attributable to such property does not cause such use of it to be a resale. Although the plaintiff's guests also used this property while occupying the rooms, they used it as a part of the rooms which they rented, not independently. Not many of them would have cared to use the rooms without any of the items mentioned."

G.S. § 105-164.26 provides that "* * * it shall be presumed that all gross receipts of wholesale merchants and retailers are subject to the retail sales tax until the contrary is established by proper records as required herein." (See G.S. § 105-164.22 et seq.) Telerent has not demonstrated that in law or in fact it is entitled to be exempted from the payment of the tax levied on it in the instant case. The retailer is liable for the tax notwithstanding that he did not collect it from his customers. Piedmont Canteen Service v. Johnson, supra.

Affirmed.

PARKER and HEDRICK, JJ., concur.