
    (No. 616
    I. S. DAVIS, d/b/a FAIRMONT LINEN SUPPLY COMPANY, Claimant, v. STATE TAX COMMISSIONER, Respondent.
    
      Opinion filed April 21, 1948
    
    Appearances:
    
      Claimant, pro se.
    
    
      W. Bryan Spillers, Assistant Attorney General, for the state.
   MERRIMAN S. SMITH, JUDGE.

I. S. Davis, doing business as Fairmont Linen Supply Company, operates a linen and towel supply business in the city of Fairmont, Marion county, West Virginia. Since 1939 he has paid annually to the state tax commissioner under the business and occupation tax statute. In 1944 the Supreme Court, in Harper v. State Tax Commissioner, 126 W. Va. 707, held that the furnishing of linen and towels was not a “service” within the meaning of the statute, and such receipts were exempt as to individuals engaged in such activity. Since there was no controversy between the state and claimant as to the amount of overpayment, the sole question for this court is to determine whether the two-year statute of limitations applicable to the state tax commissioner or the five-year statute of limitations applicable to the state court of claims shall prevail in the instant claim.

It is the opinion of the majority of the court that there is a moral obligation imposed upon the state to refund the amount overpaid not barred by the state court of claims statute of limitations. Raleigh County Bank v. State Tax Commissioner; Jess P. Richmond v. State Tax Commissioner, not yet reported.

The amount of refund, including tax and penalties for the respective years as filed by the claimant and audited by the state tax department, is as follows:

Second half of 1942 __$106.11
First half of 1943 ... . 98.28
Second half of 1943 . 94.14
Entire year 1944 . . . 242.90
First half of 1945 .. . 68.46
Second half of 1945 . .. 76.07

making a total refund amounting to six hundred eighty-five dollars and ninety-six cents ($685.96) which amount is hereby awarded t.o claimant, by a majority of the court.

ROBERT L. BLAND, Judge,

dissenting.

I cannot concur in the award made in this case by majority members of the court for the reason that I believe it to be in direct conflict with the law as interpreted and announced by the Supreme Court of Appeals of West Virginia. See State v. Penn Oak Oil & Gas, Inc., 128 W. Va. 212. For further reasons upon which I base my dissent I respectfully refer to my dissenting statement filed in the case of Raleigh County Bank v. State Tax Commissioner and my further dissenting statement filed in the case of Eastern Coal Sales Company v. State Tax Commissioner, not yet reported.  