
    Fort, Commissioner of Finance and Taxation, et al. v. Hammett Oil Co.
    
      (Nashville,
    
    December Term, 1935.)
    Opinion filed May 2, 1936.
    Boy H. Beeleb, Attorney-General, Noeman Faeeell, Jack Noeman and L. Buchanan Loses, all of Nashville, for petitioner.
    
      JORDan Stokes, Jr., Jordan Stokes, III, and J. Whit-worth Stokes, all of Nashville, for appellees.
   Mb. Chief ¡Justice Green

delivered the opinion of the Court.

This case in the main falls under the' authority of Dancey Fort, Commissioner, et al. v. Dixie Oil Company (Tenn. Sup.), 93 S. W. (2d), 1260, and Dancey Fort, Commissioner, et al. v. Erle Hudson (Tenn. Sup.), 93 S. W. (2d), 1263, this day decided.

The only difference in the present case is that the Hammett Oil Company claims that it is not a dealer or distributor of gasoline and is not liable, therefore, for the gasoline tax.

An amendment to the petition of the Hammett Oil Company, however, discloses that it is the owner of a certain tank adjacent to the railroad tracks in Nashville, which tank it avers is leased to certain parties, that the Hammett Oil Company, as a part of its contract with its 'lessees, had agreed to receive from them and transmit to the state the fees on each car that lessees received and unloaded at this location. That certain cars were received at said location and the tax paid on them as for kerosene. The amendment, however, concedes that the Hammett Oil Company did not know whether in fact these cars contained kerosene, gasoline, or other products.

It is thus apparent from this statement of the situation that the commissioner of finance and taxation must have concluded from his investigation that the Hammett Oil Company was a party to an illegal distribution of gasoline, distributed as kerosene, and liable for the gasoline tax.

The averments of the petition of the Hammett Oil Company raise merely an issue of fact between that Company and the commissioner — whether the Hammett Oil Company participated in the distribution of gasoline without paying the tax thereupon.

Under sections 1794 and 1795 of the Code, such an issue of fact between the state and the taxpayer can only be litigated after the tax is paid.

The writs of certiorari and supersedeas sought by the commissioner and the sheriff are granted, and the writs of certiorari and supersedeas issued from the chancery court to stay the levy of the distress warrant are quashed.  