W.F. Jensen Candy Co. v. State Tax Comm.

I concur in the holding that the vendor is responsible to the state for a tax amounting to 2 per cent on all retail sales. The law says so. This tax can be settled for by paying 2 per cent on the aggregate of all his sales except that if he has collected more than that he must turn it over to the state. Where there are fractions of a cent due on the aggregate sales, the settlement for such fractions of a cent may be taken care of in the way the commission determines, by a debit and credit system, or other authorized means. I do not see that this case involves the question of how a vendor may pass on to the vendee a fraction of a cent in tax on a single sale. It may be that such fraction cannot be so passed on because of the lack of coinage or tokens of less than a cent in value. Or it may be that under section 4(a), as amended by chapter 20, Second Special Session Laws of Utah 1933, the vendor may require the vendee to pay a whole cent where there is a fraction of a cent due. I cannot see that this necessarily involves the implication that it is a tax against the vendee and not the vendor. It is said we so held in the case ofState Tax Commission v. City of Logan, 88 Utah 406,54 P.2d 1197. I fail to see that we have so held. It is argued that if it is a tax against the vendee some provision must be made whereby the vendor may reimburse himself, because it would be unconstitutional to hold a man responsible for another's tax when there was no way in which it could be collected from such other, and that, therefore, in the case of sales of less than 50 cents the law contemplated reimbursement would have to be foregone entirely because there is no way to collect less than a cent; that if a whole cent were charged, then it would bring about another unconstitutional situation as far as the vendee was concerned. But is it unconstitutional to exact a greater percentage of a small sale than of a large sale? It may be that where such a great percentage of a small income were taken as to deprive a man of his living so as to make him a slave of the government in the sense that practically all he made was taken from him, such discrimination would be unconstitutional and it may be unfair. But, merely to require larger percentages of smaller incomes than of larger may not offend against the Constitution any more than to require larger percentages of larger incomes offends against the Constitution. But I do not think the question of whether it is a tax on the sale or one on the purchase is involved. Therefore the question of whether it is fundamentally a tax on the buyer's side of the transaction which the seller must collect, or whether it is a tax on the seller's side of the transaction for which the law permits reimbursement, is not involved. And I may add that I hope something as metaphysical as this may never be involved. Such questions are not now involved.

All we need decide in this case is that the plaintiff is obligated to pay 2 per cent to the tax commission on sums of $1,527.16 and $1,528.52 for July and August, 1935, respectively. Nor do I see that the question of whether the Jensen Candy Company must pay overage on any single sales if such was collected is involved. That is to say, if on its single sales of less than 50 cents it collected the whole 1 cent, whether it must account for all that overage on all those single sales as well as 2 per cent on all other sales over 50 cents is not involved, because evidently the commission does not make any such claim.

I can see that if A. sells a 10-cent article to B. and it is a contract, and B. would refuse to pay more than one-fifth of a cent tax, and because he could not pay such fraction owing to impracticability refuses to pay any tax and then sues A. for delivery of the article, if suit for delivery could be brought, tendering the 10 cents, we might have a test case of the tax law in this regard. But this case involves settlement between a retailer and the commission and not a test case between the retailer and a vendee as to whose favor the fractions of a cent may be disregarded. Consequently, I see no necessity of assuming that the commission has power to issue tokens as a means of paying fractional cent taxes. It may or may not have such authority. I concur with these limitations.