King & Boozer v. State , 241 Ala. 557 ( 1941 )

The material, lumber, in question was sold by the appellants, King and Boozer, to Dunn Construction Company, Inc., and John S. Hodgson and Company, independent contractors under contract with the United States to construct buildings at Camp McClellan, near Anniston, Alabama. The contract between said contractors and the United States provides: "That the contractor shall furnish all labor, material, tools, machinery, equipment facilities and supplies necessary for the completion of the work." (Italics supplied.)

General Act No. 18, General Acts of Alabama, 1939, page 16, Code 1940, Tit. 51, §§ 752-783, 785, 786, 831, levies the tax, not on the government or its instrumentalities, but on persons engaged in the business of selling, and the tax is merged into the price, as a part thereof. Lone Star Cement Corporation et al. v. State Tax Commission et al., 234 Ala. 465, 175 So. 399.

While it is true that the purchaser, consumer, ultimately pays the tax, that is true of all taxes which are added in as overhead expense in doing business.

The tax is not levied on the material, the lumber, nor on the title thereof, but on the privilege of selling and if the seller does not include the tax in the price of the sale, he alone is liable. The levy affirmed by the Circuit Court was against, King and Boozer, not against the government.

The mere fact that the material goes into government buildings does not convert the statute into a levy against the United States. The liability for the tax is fixed when the sale is made, and the lumber in the instant case was delivered at the place of intended use to the account of the contractor.

In my opinion the Circuit Court did not err in affirming the levy, and the judgment should be affirmed.

I therefore, respectfully dissent.