Opinion
No. 37521
Decided April 17, 1963.
Taxation — Sales and use tax — Items used directly in making retail sales — Trucks used in delivering merchandise sold to retail customers — Court will not substitute its judgment for that of board — Decision affirmed where not unreasonable or unlawful.
APPEAL from the Board of Tax Appeals.
This case arose from a sales tax deficiency assessment against the appellant on account of nonpayment of sales tax on rental charges paid principally by two furniture dealers to the appellant for trucks rented by the appellant to those furniture dealers and used by them in delivering merchandise sold by them to their retail customers. In approving the deficiency assessment, the Tax Commissioner stated in his order that "delivery equipment is not excepted from the imposition of sales tax regardless of the type of merchandise requiring this service."
The Board of Tax Appeals, on appeal, affirmed the order of the Tax Commissioner.
On appeal from that decision of the board, this court, in Lakeside Truck Rental, Inc., v. Bowers, Tax Commr., 173 Ohio St. 108, reversed the decision, holding that in such an instance delivery is an essential part of the making of such retail sale which does not end until such delivery is made, and that a truck used directly in making such delivery is used directly in making that retail sale, and, accordingly, remanded the cause to the board to consider the question whether the evidence was sufficient to support a finding that, as to any rental of a truck involved in the case, the purpose of the furniture company was to use the rented truck for deliveries of items sold to retail customers under contracts of sale not to be completed until such deliveries had been made.
Upon remand to the board, the matter was resubmitted upon the notice of appeal, the statutory transcript supplied by the Tax Commissioner, the evidence presented at the former hearing, briefs, and the remand by this court. The board reviewed the evidence and found that it was insufficient to support a finding that, as to any rental of a truck involved in the case, the purpose of the furniture company was to use the truck for deliveries of items sold to retail customers under contracts of sale not to be completed until such deliveries had been made, and again affirmed the order of the Tax Commissioner.
An appeal from that decision brings the cause to this court for review.
Mr. Bernard S. Goldfarb, for appellant.
Mr. William B. Saxbe, attorney general, and Mr. Edgar L. Lindley, for appellee.
The Board of Tax Appeals could very well have opened up the case and heard additional evidence on the question, but apparently did not think it necessary to do so.
In its entry it states:
"It is obvious that trucks, such as are involved herein, can be used by retail furniture stores in many different ways, and that the tax status of the rental thereof depends upon proof, and not mere statement, that the trucks are actually used in such a way that the rental thereof is excepted from sales taxation. * * * In the instant case it is apparent that appellant, if it wished to overcome the presumption of taxability set out in R.C. Section 5739.02, should have established by competent and credible evidence that" the trucks were used exclusively or primarily to deliver merchandise to homes of customers who had purchased the merchandise, and that the contracts for the sale of merchandise required the seller to make deliveries to the places indicated by the customers.
Every sale or use of tangible personal property in Ohio is presumed to be taxable, and the burden rests on the taxpayer to establish affirmatively its right to the exceptions claimed. Standard Oil Co. v. Peck, Tax Commr., 163 Ohio St. 63.
It is not the function of this court to substitute its judgment for that of the Board of Tax Appeals on factual issues but only to determine from an examination of the record whether the decision reached by the board is unreasonable or unlawful.
From an examination of the record, this court is unable to find that the decision of the Board of Tax Appeals is unreasonable or unlawful. The decision is, therefore, affirmed.
Decision affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, GRIFFITH, HERBERT and GIBSON, JJ., concur.