Atwater-Waynick Hosiery Mills, Inc. v. Clayton , 268 N.C. 673 ( 1966 )

151 S.E.2d 574 (1966) 268 N.C. 673

ATWATER-WAYNICK HOSIERY MILLS, INC.
v.
I. L. CLAYTON, Commissioner of Revenue of North Carolina.

No. 521.

Supreme Court of North Carolina.

December 14, 1966.

McMichael & Griffin, by Hugh P. Griffin, Jr., and Albert J. Post, Reidsville, for plaintiff appellee.

T. W. Bruton, Atty. Gen., Charles D. Barham, Jr., Asst. Atty. Gen., for the State.

HIGGINS, Justice.

All critical facts in this case were stipulated. Decision, therefore, involves the proper application of the North Carolina taxing statutes to the stipulated facts. G.S. § 105-164.6 authorizes an excise tax "on the storage, use or consumption in this State of tangible personal property purchased within and without this State for storage, use or consumption in this State." G.S. § 105-164.4 authorizes a tax of one per cent of the sales price subject to a maximum of $80.00 per article on (1) (h) mill machinery sold to manufacturing industries and plants. As applied to the facts here involved, the taxing statutes became effective July 1, 1961.

The use tax here involved was designed to complement the sales tax and to reach transactions which could not be subject to a sales tax by reason of its burden on interstate commerce. Johnston v. Gill, Commissioner of Revenue, 224 N.C. 638, 32 S.E.2d 30; McLeod v. J. E. Dilworth Co., 322 U.S. 327, 64 S. Ct. 1023, 88 L. Ed. 1304; Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S. Ct. 546, 82 L. Ed. 823, 115 A.L.R. 994. "While a sales tax and a use tax in many instances may bring about the same result, they are different in conception. They are assessments upon different transactions and are bottomed on distinguishable taxable events. * * * A sales tax is a tax on the freedom of purchase and, when applied to interstate transactions, it is a tax on the privilege of doing interstate business, creates a burden on interstate commerce and runs counter to the commerce clause of the Federal Constitution. * * * Conversely, a use tax is a tax on the enjoyment of that which was purchased after a sale has spent its interstate character." Johnston v. Gill, Commissioner, supra.

The parties stipulated the plaintiff, a North Carolina corporation engaged in the hosiery business, ordered for use in its business 30 machines from the manufacturer in Philadelphia. The order was accepted May 15, 1961. At that time the machines were not in existence. They were manufactured and delivered over a three months period beginning in September, 1961. The plaintiff contends the critical date is May 15, 1961, when the contract was accepted and the initial installment paid on the purchase price. Admittedly, on that date the use tax here involved was not in effect. It became effective on July 1, 1961. Obviously a use tax could not take effect before the use began. As to all machines the use was subsequent to July 1, 1961. "It (use tax) does not aim at or discriminate against interstate commerce. It is laid upon every purchaser, within the state, of goods for consumption, regardless of whether they have been transported in interstate commerce. Its only relation to [interstate] commerce arises from the fact that immediately preceding transfer of possession to the purchaser within the state, which is the taxable event regardless of the time and place of passing of title, the merchandise had been transported in interstate commerce and brought to its journey's end." McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 60 S. Ct. 388, 84 L. Ed. 565; Henneford v. Silas Mason Co., 300 U.S. 577, 57 S. Ct. 524, 81 L. Ed. 814; Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 83 S. Ct. 1201, 10 L. Ed. 2d 202; Johnston v. Gill, supra.

We conclude the tax here involved was properly levied and collected by the Commissioner of Revenue. It follows that Judge Morris committed error in ordering the refund. The cause is remanded to the Superior Court of Wake County for the entry of judgment dismissing the action. The judgment entered in the Superior Court of Wake County is

Reversed.