Buchan v. Shaw

Barnhill, J.

Ail action against tbe Commissioner of Revenue, in essence, is an action against tbe State. Insurance Co. v. Unemployment Compensation Com., 217 N.C. 495, 8 S.E. 2d 619. Since tbe State bas not waived its immunity against suit by one of its citizens under tbe Declaratory Judgment Act to adjudicate bis tax liability under tbe sales tax statute, tbe court properly sustained tbe demurrer. Insurance Co. v. Unemployment Compensation Com., supra. See also Bunn v. Maxwell, Comr. of Revenue, 199 N.C. 557, 155 S.E. 250; Rotan v. S., 195 N.C. 291, 141 S.E. 733.

Plaintiff’s only remedy is provided by Gr.S. 105-267. He must follow tbe procedure there prescribed.

In any event, tbe question tbe plaintiff seeks to bave tbe court answer by declaratory judgment is put at rest in tbe opinion in Phillips v. Shaw, ante, p. 518, tbis day filed.

Tbe judgment entered in tbe court below is

Affirmed.