Biggers Bros. v. Jones

HIGGINS, Justice.

Under the Soft Drink Tax Act the State levies on the distributor a tax of one cent on each bottled drink; one cent on each ounce of soft drink powders, and $1.00 on each gallon of soft drink syrup. Tax stamps must be purchased from the State and attached to the containers showing the distributor has paid the tax. An alternate method of tax payment, at the election of the distributor, is authorized in the case of bottled soft drinks and soft drink powders. In lieu of the purchase and attachment of stamps, the distributor may give bond, keep records, and on the fifteenth of each month pay the tax for the previous month. The alternate method of payment is not made applicable to the tax on syrups. .

The alternate method of tax payment on bottled drinks and powders dispenses with the printing, purchase, and attachment of one hundred stamps for each dollar of tax revenue. In the case of syrups, the purchase and attachment of one stamp will produce $1.00 in tax revenue. Placing the bottles and powders in one category and syrups in another for tax purposes is proper and justified.

The record discloses that in actual operations some dealers in bottled soft drinks and in soft drink powders discharged their tax liability as provided by the alternate method. Other dealers bought and attached stamps or crowns and did not avail themselves of the monthly payment provision of the Soft Drink Tax Act. All dealers, however, except the plaintiff bought and attached stamps to the containers of soft drink syrups. The plaintiff did purchase 250 stamps at $1.00 each apparently to attach to 250 gallons of soft drink syrup, but otherwise, it sought to apply the alternate method of deferred payments which it asks the court to approve and demands the return of the amount paid for the 250 stamps. The plaintiff asks that the Revenue Department be directed to permit it to pay its tax on soft drink syrups on the fifteenth of each month for the purchases for the prior month and that it be not required to purchase and attach stamps.

By admissions in the brief, the plaintiff makes it plain that it does not challenge the validity of the soft drink tax or the three classifications, but it does contend that the failure of the Legislature to provide the alternate payment method to soft drink syrups which it applies to bottled drinks and powders is unconstitutional and void as discriminatory.

The plaintiff’s brief, however, states:

“The plaintiff raises no issue with respect to the constitutionality of the Soft Drink Tax Act per se, nor to the division of taxable products into three categories (namely, bottled soft drinks, soft drink powders, and soft drink syrups). Nor is any issue raised regarding the rate of tax applicable to each type of product. Its complaint is addressed specifically to the manner in which the tax upon taxable syrups is collected, in comparison with the method applicable to the collection of the tax on taxable powders and bottled soft drinks.”

Judge Hobgood properly concluded that the method of payment by attaching stamps on soft drink syrups was not discriminatory and not in violation of the plaintiff’s rights. The lawmaking body, as it had a right to do, made classifications for tax purposes. “Acting within the limits of our Constitution, a large field is afforded the Legislature in its choice of subjects for taxation. When these subjects are segregated by descriptions or definitions with reasonable clearness, — the classification reasonable and the distinctions made not arbitrary or capricious, — the imposition of the tax is not assailable.” Henderson v. Gill, Comr. of Revenue, 229 N.C. 313, 49 S.E. 2d 754. See also Rigby v. Clayton, Comr. of Revenue, 274 N.C. 465, 164 S.E. 2d 7; Bottling Co. v. Shaw, Comr. of Revenue, 232 N.C. 307, 59 S.E. 2d 819; Whitney v. California, 274 U.S. 357, 71 L.Ed. 1095, 47 S.Ct. 641.

The plaintiff cannot make out a case of discrimination. The tax burden falls equally upon all members of the class. In Snyder v. Maxwell, Comr. of Revenue, 217 N.C. 617, 9 S.E. 2d 19, the Court held: “It is clear that the Legislature has not exhausted its power of classification by making a distinction as to the manner in which an article is sold — as, for example, through mechanical devices — but it may make a further classification or sub-classification within reasonable limits with reference to the kinds of goods, wares, and merchandise which are so sold from them; and the fact that they are all sold in a similar manner will not defeat the further classification of the privilege.”

Finally, the plaintiff makes it clear in its brief that it recognizes the distinction in the three categories subject to the soft drink tax. The plaintiff’s brief contains the following: “Again, it is emphasized that plaintiff does not attack the tax itself, but only the collection method;... ”

From the point of view of the plaintiff, the Court recognizes the plaintiff could save time and money if it were permitted to pay by check on the fifteenth of each month, but the Court is not the forum in which the plea should be heard and determined. The appeal for relief sought should be made to the General Assembly and not to the Court. As said by the Supreme Court of the United States in Tappan v. Merchants National Bank, 19 Wall. 490, 22 L.Ed. 189: “The constitution does not require uniformity in the manner of collection. Uniformity in the assessment is all it demands. When assessed the tax may be collected in the manner the law shall provide; and this may be varied to suit the necessities of each case.” In Missouri, K. & T. Trust Co. v. Smart, 51 La. Ann. 416, 25 So. 443, the Court said: “The constitutional requirement that taxation shall be equal and uniform applies to the levy, and not the method of collecting the tax.”

The plaintiff’s concessions in the brief, the evidence, the pleadings, the findings and conclusions of law by the trial court amply support the court’s judgment. The record fails to disclose any reason why the judgment should be disturbed.

Affirmed.