DocketNumber： 20380
Citation Numbers： 109 S.E.2d 329, 215 Ga. 74
Judges： Almand, Duckworth, Head, Hawkins
Filed Date： 5/8/1959
Status： Precedential
Modified Date： 11/7/2024
This case originated in a suit by Nehi Corporation against the State Revenue Commissioner to recover stated sums alleged to have been collected illegally or erroneously by the Commissioner as income taxes for the years 1950-1954 inclusive. The case was tried by the court without the intervention of a jury upon the following agreed stipulation of facts:
1. “Plaintiff is a Delaware corporation with its principal office located in Columbus, Muscogee County, Georgia. The principal business of Plaintiff is the manufacture and sale of flavor concentrates used by bottlers in the production of soft drinks. These concentrates are manufactured by Plaintiff solely at its plant in Columbus, Georgia. Plaintiff maintains inventories of these concentrates at its plant in Columbus, Georgia, and also at a warehouse owned and operated by Plaintiff in Los Angeles, California.
2. “Plaintiff’s only customers are bottlers of soft drinks located in all of the forty-eight states and various foreign countries, and substantially all of its orders for flavor concentrates are received by mail from these bottlers.
3. “Plaintiff derives its income from the manufacture and sale of tangible personal property and is entitled to use the three factor formula prescribed by Code Sectioni 92-3113 (4) in the allocation and apportionment of its income. No questions exist between the parties with respect to the amount of Plaintiff’s total net income for each of the tax years in question, or the ‘average inventory ratio’ or the ‘salaries and wages ratio’ of the apportionment formula; the only question- is with respect to the makeup of the 'gross receipts ratio’, under Code -section 92-3113 (4) (c) and the facts here stipulated.
4. “During each of the tax years in question, Plaintiff’s gross receipts were derived from three types of shipments of the con
5. “All shipments from its Georgia plant, irrespective of destination, were made pursuant to orders received, accepted and handled entirely at Plaintiff’s principal office in Columbus, Georgia.
6. “Substantially all of Plaintiff’s shipments were effected by common earners, and the Plaintiff prepaid transportation charges thereon. Most of such shipments were made on bills of lading which named Plaintiff as consignee and which were attached to sight drafts drawn against the bottler for whom the shipments were intended; such bills of lading, with drafts attached, were forwarded to local banks for collection, and when collected, the bills of lading were endorsed to' the bottler who could then claim the shipment from the carrier. In all cases Plaintiff assumed the responsibility for shipments lost or damaged in transit and, with respect to all shipments, it was agreed between Plaintiff and its customers that the products shipped by Plaintiff would be actually delivered to its customers at destination, Plaintiff retaining title until the shipments reached their destination.
7. “For each of the tax years in question, Plaintiff filed its Georgia income tax returns with the State Revenue Commissioner and computed and paid its income taxes on the basis of including as gross receipts from business done in Georgia the gross receipts from all shipments made from its Georgia plant irrespective of the destination of such shipments (i.e. the gross receipts described in (a) and (b) of paragraph 4) and excluding therefrom the gross receipts from all shipments made from its California warehouse (i.e. the. gross receipts described in (c): of paragraph 4). At no time has the State Revenue Commissioner disputed Plaintiff’s returns for these years with respect to this make-up of the gross receipts factor.
8. “On May 29, 1956, Plaintiff filed with the State Revenue Commissioner claims for the refund of a portion of the taxes
9. . . “On November 8, 1956, the State Revenue Commissioner denied the aforesaid claims for refund on the grounds that the aforesaid decision of the Court of Appeals, having been reversed by the Supreme Court, 212 Ga. 630, was not controlling.
10. “For each of the tax years in question, Plaintiff returned and paid state income taxes in Georgia, Alabama and California; the income tax liability to Alabama was incurred by reason of Plaintiff’s operating there a bottling plant separate from its concentrate business.
11. “The only issue in this case is whether, under the facts here stipulated as applied to Code section 92-3113 (4) (c), gross receipts from business done in Georgia includes only gross receipts from shipments made from Plaintiff's Georgia plant to its Georgia bottlers (i.e. only the gross receipts described in (a) of paragraph 4), as contended by Plaintiff, or whether it includes all gross receipts from shipments made from its Georgia plant to both its Georgia bottlers and to its bottlers located in other states and foreign countries (i.e. the gross receipts described in both (a) and (b) of paragraph 4), as contended by Defendants.”
A judgment was rendered in favor of the taxpayer, and affirmed by the Court of Appeals (two judges dissenting), Oxford v. Nehi Corporation, 98 Ga. App. 779 (106 S. E. 2d 857). This court granted the Revenue Commissioner’s petition for the writ of certiorari.
The controlling question in this case is the. meaning and effect of subsection (4) (c) of section 1 of the act of 1950 (Ga. L. 1950, p. 299), which amended Code (Ann.) § 92-3113. Said subsection reads as follows: “Gross receipts ratio. The ratio of gross receipts from business done within this State to total gross receipts from business done everywhere. For the purposes of
The Revenue Commissioner contends that this subsection, when construed with the whole of Code (Ann.) § 92-3113 and Code (Ann.) § 92-3002 (n), means that, where products are produced, manufactured or stored in this State and shipped to customers outside this State, the gross receipts derived therefrom are to' be included in the Georgia gross receipts unless the sales for such products were negotiated or effected through offices of the taxpayer outside the State. The taxpayer contends that the receipts which are to be included in the numerator of the Georgia gross-receipts ratio are, first, all receipts from products shipped to customers in this State, and, second, all receipts from products delivered within this State to customers; and that the character of the receipts is not determined as to where the sale of the products was negotiated or where title to the products passed.
A brief history of the Three-Factor Formula will be helpful in determining the meaning of Code (Ann.) § 92-3113(4) (c). The first Income Tax Law of 1929 (Ga. L. 1929, p. 92) did not provide for the apportionment of corporate income by the use of any formula. The Income Tax Act of 1931 (Ga. L. 1931, Ex. Sess., pp. 24, 36) provided for the allocation and apportionment of coiporate income as follows: “Where income is derived from the. manufacture or sale of tangible personal property, the portion thereof attributable to business within the State
“3. Sales Ratio. The ratio of the total sales made through or by offices, agencies, or branches located in Georgia during the income year to the total net sales made everywhere during said income year. The tangible property ratio, the manufacturing cost ratio, and the sales ratio being separately determined and the three percentages averaged.
“d. Where income is derived principally from the holding and/or sale of tangible personal property having a taxable situs in this State, the taxable income shall be apportioned as follows: “1. Real estate and tangible personalty. The ratio of the value of its real estate and tangible personal property in this State on the date of the close of the income year of such company to the value of its entire real estate and tangible personal property then owned by it with no deduction on account of incumbrances thereon.
“2. Sales. The ratio of the total sales made through or by its offices, agencies, or branches located in Georgia during the income year to the total sales made everywhere during said income year. The tangible property ratio and the sales ratio being separately determined and the two percentages averaged.” Section l(n) of this act defined the word “sale or sales” as follows: “The word 'sale or sales’ wherever appearing in this Act for the purpose of apportioning net income to Georgia shall be deemed to be the total value of all sales made through or by
It is clear that the General Assembly in adopting the “Gross receipts ratio” as one of the three factors in apportioning corporate-income tax, substituted the factor of gross receipts for that of sales by providing that such receipts be derived from products shipped to customers in this State or delivered within the State to customers, in lieu of the prior provision as to where the sales were negotiated or effected. Code (Ann.) § 92-3113 (4) (c), which reads: “For the puiposes of this section receipts shall be deemed to have been derived from business done within
Counsel for the Commissioner insists that the definition of the word “sale or sales” as contained in the act of 1937 (Ga. L. 1937, pp. 109, 114; Code, Ann., § 92-3002 (n)), to wit: “The word 'sale or sales’ wherever appearing in this Act for the puzpose of apportioning net income to Georgia shall be deemed to be the total value of all sales made through or by the offices, agencies, or branches located within this State, regardless of the destination,” has never been repealed and should be constz-ued with Code (Ann.) § 92-3113(4) (c); and that, when the two sections az’e thus read together, the taxpayer is liable regardless of the destination of the goods, since the receipts in question were from sales made through or by its offices, agencies, or branches located within the State. The definition as to “sale or sales” was set out in the act of 1937, which established the “Sales Ratio” as one of the three factors in apportioning incozne, and was applicable as long as the “Sales Ratio” was a factor, but the act of 1950 substituted the “Gross Receipts Ratio” in place of the “Sales Ratio,” and the woz’d “sales” is not mentioned in Code (Ann.) § 92-3113(4) (c), except as to goods in storage. This definition as set out in Code (Ann.) § 92-3002 (n) has no application to the meaning of the present Code (Ann.) § 92-3113(4) (c).
The cases of State of Ga. v. Coca-Cola Bottling Co., 212 Ga. 630 (94 S. E. 2d 708), and State of Ga. v. Coca-Cola Bottling
The Court of Appeals held that the instant case was controlled by its ruling in State of Ga. v. Coca-Cola Bottling Co., 93 Ga. App. 609 (92 S. E. 2d 548). The judgment in that case on certiorari to this court was reversed (State of Ga. v. Coca-Cola Bottling Co., 212 Ga. 630, supra), and the judgment in that case was vacated (State of Ga. v. Coca-Cola Bottling Co., 94 Ga. App. 506, 95 S. E. 2d 33). This court, in referring to the ruling in State of Ga. v. Coca-Cola Bottling Co., 93 Ga. App. 609, supra, said, “the ruling on the demurrer resulted in all other portions of the Court of Appeals opinion becoming completely void.” State of Ga. v. Coca-Cola Bottling Co., 214 Ga. 316, 322, supra. The case reported in 93 Ga. App. 609, supra, is of'dubious vitality as a precedent. However, the Court of Appeals arrived at the correct result, and its judgment upholding the judgment of the trial court is affirmed.
Judgment affirmed.