
    Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana, Plaintiff-Appellee-Appellant, v. The PARISH OF CALCASIEU, Defendant-Appellee, and Consolidated Aluminum Corporation (Formerly Gulf Aluminum Corporation), Defendant-Appellant-Appellee.
    No. 4545.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 11, 1974.
    Writs Refused Sept. 20, 1974.
    
      Mengis, Roberts, Durant & Carpenter by Warren L. Mengis, Baton Rouge, for plaintiff-appellee-appellant.
    Stockwell, St. Dizier, Sievert & Viccel-lio, by Fred H. Sievert, Jr., Lake Charles, for defendant-appellant-appellee.
    Kantrow, Spaht, Weaver & Walter by Carlos G. Spaht and Paul H. Spaht, Baton Rouge, for defendant-appellant.
    Before CULPEPPER, MILLER and WATSON, JJ.
   CULPEPPER, Judge.

We granted the application for rehearing by Joseph N. Traigle, Collector of Revenue for the State of Louisiana. He contends we erred in three respects: (1) Not granting judgment against the Parish of Calca-sieu as well as Canalco; (2) not increasing the amount of statutory penalties from $58,655 to the sum of $76,038.98; (3) amending the judgment of the trial court to provide interest on the amount of the taxes due at the rate of 1/2% per month from due date until paid.

JUDGMENT AGAINST THE PARISH OF CALCASIEU

In our original opinion we found the parish is liable for the taxes but stated that since Canalco has assumed all of the tax obligations of the parish, we did not believe it necessary to give judgment against both the parish and Canalco. In his application for rehearing, the Collector of Revenue strongly urges that he desires and is entitled to judgment against the parish, because if Canalco should undergo some sort of corporate reorganization or become financially unable to pay the judgment, then the Collector’s judgment would be worthless. We agree with the Collector. He is entitled to judgment against the parish since it is the party primarily liable for the taxes. Canalco is liable only under its hold-harmless agreement with the parish.

INTEREST ON THE UNPAID TAXES

In his application for rehearing, the Collector argued that we erred in amending the trial court judgment to provide for interest on the amount of taxes due at the rate of 1/£ of 1% per month from the due date. However, in oral argument on the application for rehearing, the attorney for the Collector stated that in view of our decision and the recent decision in Parish of Calcasieu, through the Calcasieu Parish Police Jury v. Joseph N. Traigle, 296 So.2d 418 (1st Cir. 1974), the Collector abandons this argument as to interest. Our original opinion will therefore remain unchanged in this respect.

THE AMOUNT OF STATUTORY PENALTIES

In his application for rehearing, the Collector reargues that credits for the amounts of $8,574.87 and $8,863.56, which were paid on the sales and use taxes due, should not be allowed. We have carefully reviewed the issue and, for the reasons stated in our original opinion, make no change in this regard.

RESERVATION TO THE PARISH OF CALCASIEU OF THE RIGHT TO APPLY FOR A FURTHER REHEARING

In oral argument on the Collector’s application for a rehearing seeking judgment against the Parish of Calcasieu, the attorneys for the parish stated that if and in the event judgment is rendered on rehearing against the parish, there is an error in the amount of penalties assessed. Since the parish has not heretofore applied for a rehearing, no judgment having been rendered against it in our original opinion, we do not have before us at the present time the issue of whether the penalties assessed against the parish are excessive. Nevertheless, under Rule XI, Section 5 of the Uniform Rules of the Courts of Appeal, we reserve to the Parish of Calcasieu the right to apply for a rehearing from the judgment being rendered herein against it.

For the reasons assigned, our original judgment is amended so as to render judgment in favor of the Collector of Revenue for the State of Louisiana and against the Parish of Calcasieu. Otherwise, our original judgment is reinstated. We reserve to the Parish of Calcasieu the right to apply for a rehearing from this judgment.

Original judgment amended in part and reinstated; right reserved to Parish of Calcasieu to apply for further rehearing.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge

(dissenting).

I persist in my original view that the Parish is not liable for these sales taxes.

St. John the Baptist P. S. B. v. Marbury-Patillo C. Co., 259 La. 1133, 254 So.2d 607 (1971) is authority for holding only Conalco and not the Parish liable for the sales taxes. In that case, a contractor was held liable for sales and use taxes in connection with construction for the South Louisiana Port Commission. It was contended that the port commission should also be liable for the taxes, but the Supreme Court, through Justice Dixon, stated that the port commission was not liable for sales and use taxes. There, as here, the parties’ contract required the contractor to pay all taxes. The ordinance under which the taxes were assessed dealt with tangible personal property which corresponds with the definition of corporeal movables in the Civil Code. Since the port commission’s contract was not for the purchase of movables but for the construction of immova-bles, it was held that the port commission, as owner of the immovable construction, was not liable for the sales taxes. The sales tax statute in question here also uses the term “tangible personal property”. The court in St. John the Baptist, supra, stated:

“No provisions of the ordinance taxing the owner of land who contracts for the erection of structures thereon have been brought to our attention,” 254 So.2d 612

The construction of the aluminum plant in this case was under the direction of Conalco. Their employee, William F. Boyer, Jr., acted as project supervisor and another employee, Jerry F. Replogele, acted as alternate project supervisor. (TR. 84) There is little question that Conalco actually acted as contractor on the project. The agreement between the parties provided that the buildings deemed necessary by the lessee, Conalco, for the operation of the project would be built in accordance with the contract, documents plans and specifications which were prepared by the lessee. (TR. 48) It was also agreed that all construction would be under the general supervision and direction of the project supervisor, a Conalco employee. (TR. 48) Under the rationale of the St. John the Baptist case, supra, only Conalco and not the Parish should be cast in judgment for the sales taxes.

I respectfully dissent.  