
    NO. 8454
    COURT OF APPEAL PARISH OF ORLEANS
    STATE OF LOUISIANA versus ABBOTT AUTO CO. LTD.
   Dinkelspiel; J.

The guest ionapresented in this oaee are:

The State of Louie lana, filed a rule against the olaiming that the defendant company prior to March 1st, 1931, prsented to the State Tax Oolleotor, its affidavit, alleging that the gross reoeipts from its retail business for the year 1930 were more than the sum of $300,000*00, and leae than the eum of $400,000*00, and by virtue of said affidavit paid to the State Tax Oolleotor, who reoeived the same, the eum of $360*00, said affidavit bringing it under the eleventh olasa of Seation. 9 of dot 331 of 1930, end the lioense hwixg based on this affidavit issued under Sea. 33 of said lot.

The answer of the defendant company admits that it is engaged in the business of retail dealer in the oity Of New Orleans; denies that it has not paid the State of Louisiana, a proper lioense tax, for the year 1931; admits having paid as a lioense tax the sum of $360*00, based tm the affidavit of gross receipts in exoess of $300,000.00, and lees than $400,000*00, which defendant claims is the proper lioense tax; denies that the gross reoeipts for the operation of said business will be for the year 1931, more than the sum of One Million Dollars; denies that there is due to the State of Xouisiana, the sum of $840.00; admits that it is neoessary to present to the Oourt for inspection, its hooks, written entree, memorandums, sto., so that It* lioense due by It be duly shown. The answer further alleges that it made application for the lioense for the year 1931 on the basis of gross sales of $300,000*00 or more and less than $400^000*00, and that said lioense being of the eleventh oláss of 8eotion9 of Act 333 of 1930; alleges that their gross sales for the year 1931 will be as much as $500,000.00, but will not exceed $600,000*00 and under that section, and under the provisions oiaimed, they deposit in the. registry of the oourt the «un «X $390.'00 being the difference between the amount of $360,00 already paid and the amount due. Wherefore they pray for judgment.

Under Sect ion 33 of the Revenue Act of 1930 s

■That the annual reoelpts, capital, aalea, premiums, commissions and earnings in this "Aot referred to as a basis of license, are those for the year for whioh the lioense is granted; the standard for their estimation shall be prima facie of the preceding year if the business has been oonduoted previously by the same party or parties to whom they olalm to be successors. If the firm or company be new, the amount of gross sales for the first two months shall be considered the basis, and six times that .amount shall be estimated as the annual rsa oelpts of such business; provided, that any person commencing business after the first of July, shall pay one-half of the above rates."

This clause means that the receipts of the preceding year shall be the lowest standard upon whioh the lioense shall be estimated, prima faoie, and which the State shall have an absolute right to demand. But that if the reoelpts during the year for whioh the lioense has been granted prove to be State shall have the larger, the/rlght to olaim an amount of license based upon such increased receipts, To make oertaln that this statute is ths one the State is to be guided by is made olear by the provision of Section 33, whioh provides for the oolleotion of the lloen-' ses of the previous year and reads as. follows:

Section 33. That the business of the previous year, as also the aotual condition and results of bdsiness of the ' ourrent year, for new firms, associations or corporations,' for the purpose of oaloulating licenses, shall be ascertained by the ta tax collector in the sworn statement of the person' or persons in interest, his or their duly authorised agent or officer, made before the tax collector or his deputy; pro-' vided that if the tax collector bó not satisfied with the said sworn statement, he shall traverse the same by a rule taken in proper court, whioh rule shall be tried summarily, whether an answer be thereto filed or not. On the trial of said rule, the books and written entries and memoranda of said person or persons, firms, oompanles, oorporations or parties, shall be brought into oourt, and subjeoted to the inspection and examination of the oourt, the offioer who took khxx the rule, and such experts as he may employ or the oourt may appoint; provided, that this ±x¡c«« inspection shall not be construed as entitling the defendant to introduce in evidence said books and documents any more than he would have been without suoh tajcssakian inspection; provided, also that the license shall issue in aooordance with the said wworn statement; notwithstanding the prospeot or pendency of the rule, and the final ratification shall be made as ordered by the court.

It is evident from the seotlons of. the Statute quoted, particularly Seotion 33, that it means that the method of aseertaining the basis for adjustment or regulation of the license shall be aooepted on its faoe. The neoessity in writing this seotion was to meet the situation.prsented. It is further evident that the affidavit of the defendant company was only prima fade and not conclusive, and the State had a perfeot right to traverse. Of oourse in order to issue the license the State was compelled to take the affidavit as presented, but Seotion 33 fives the right to the State to traverse, as was done in this oase, and the isfftxtfcxixikx words prima facie whioh appear in Seotion 33, in no manner conflict, but strengthens in our opinion Seotion 33 of the Aot.

We are informed that the provisions of this Act and the intentions of same have not been passed upon by our Supreme Court and our own efforts to ascertain whether they have been adjudicated upon have been unsuccessful. We are compelled, therefore, to hold that in the many years prior to the present Act the State based its revenues from this source just as it did in the years 1930 and 31; any other rule to be now applied would be an innovation and we cannot see that the mare words of the aot differ in any respect from preceding acts on the same question.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the Court a quo be and the same is hereby affirmed, costs of both Courts to be paid by-defendant.

-Judgment affirmed-  