Hawes v. Shuman

Court of Appeals of Georgia

Hawes v. Shuman

181 S.E.2d 708, 123 Ga. App. 543, 1971 Ga. App. LEXIS 1293

CourtCourt of Appeals of Georgia

DecidedMarch 9, 1971

Docket45704

StatusPublished

Cited by7 cases

This text of 181 S.E.2d 708 (Hawes v. Shuman) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hawes v. Shuman, 181 S.E.2d 708, 123 Ga. App. 543, 1971 Ga. App. LEXIS 1293 (Ga. Ct. App. 1971).

Pincite

Opinions

Deen, Judge.

In addition to what has been set out above, it must be noted that certain facts found by the auditor were not excepted to and constitute the law of the case, including the fact that the taxpayer had throughout acted in perfect good faith; that none of the deficiency sales tax collected by the State and on which the penalties had been imposed was in fact collected by the taxpayer; that all records including invoices had been made available by the taxpayer to the State auditor; that the auditors did not use purchase and sale invoices in reconstructing the deficiency tax status but used a purchase-plus-mark up method. The State makes no contention here that the taxpayer acted either negligently or in bad faith nor does it contend that the deficiency taxes claimed to be owed were ever received by him or that the evidence as to duress is insufficient. It contends that, based on a purchase- and-mark up reconstruction, the taxpayer should have paid addi[546]*546tional taxes and was liable for them and penalty thereon. It further contends that the burden is on the taxpayer to make a prima facie case entitling him to the refund; that he can only do this by producing the sale invoices, which it admits would settle the issue, but that in the present absence of the invoices themselves there is no evidence available by which a prima facie case can be established, and that therefore the judgment in favor of the taxpayer cannot stand:

This case has received meticulous attention from the full court. All of us are united in agreement that the penalties were wrongfully imposed in view of the fact that they were imposed prior to the amendment of Code Ann. § 92-3426a. Hawes v. Smith, 120 Ga. App. 158, 160 (169 SE2d 823).

All of us are agreed that the burden is on the taxpayer to establish a prima facie case for refund. Oxford v. Shuman, 106 Ga. App. 73, supra; Hawes v. Smith, supra; Hawes v. Bigbie, 123 Ga. App. 122 (179 SE2d 660). A majority of this court feel that this burden has in fact been carried by the taxpayer. "The best evidence which exists of the fact sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.” Code §38-203. Whether or not the loss of the boxes of original invoices was satisfactorily accounted for at the time of this trial must depend to some extent on the credibility of the taxpayer. The jury found that he made them available at the time of the original State audit. The State at that time indicated it was not concerned with them. Subsequently, it failed to subpoena them by giving a ten-day notice to produce under Code Ann. §92-3432a, although there was no necessity for it to do this in view of the taxpayer’s co-operation in the audit. Anderson v. Blackmon, 123 Ga. App. 128 (179 SE2d 657). Thirdly, and more seriously, the State refused to allow the taxpayer the mandatory administrative hearing which had been demanded under Code Ann.§ 92-8436 in 1959 at a time when the records were also available. Regardless of what burden there might be on the State to follow statutory procedures which would have obviated an approximately ten-year delay in examining the sale invoices, all of this evidence is relevant to the question of whether there was a "satisfactory” explanation of the loss of the invoices when another company moved [547]*547into the building in which they had been stored prior to the hearing before the auditor and his report in 1967. As to the latter, there was detailed evidence of the manner in which the tax reports submitted were made up from work sheets taken from the daily sale invoices themselves and miscellaneous receipts as shown on day books, and that they did in fact accurately represent taxable sales. The invoices, as conceded by the State, could have been introduced in evidence under the business records rule. Code Ann. § 38-711. Testimony that the monthly tax statements which were introduced in evidence were correct and were accumulated from this source therefore, under the circumstances of this case, constituted evidence of the fact to be proved and the testimony was sufficient, under the any evidence rule to support the verdict and judgment.

Judgment affirmed.

Pannell, Quillian and Whitman, JJ., concur. Evans, J., concurs in the judgment. Bell, C. J., Jordan, P. J., Hall, P. J., and Eberhardt, J., dissent.

Free access — add to your briefcase to read the full text and ask questions with AI

Deen, Judge.

In addition to what has been set out above, it must be noted that certain facts found by the auditor were not excepted to and constitute the law of the case, including the fact that the taxpayer had throughout acted in perfect good faith; that none of the deficiency sales tax collected by the State and on which the penalties had been imposed was in fact collected by the taxpayer; that all records including invoices had been made available by the taxpayer to the State auditor; that the auditors did not use purchase and sale invoices in reconstructing the deficiency tax status but used a purchase-plus-mark up method. The State makes no contention here that the taxpayer acted either negligently or in bad faith nor does it contend that the deficiency taxes claimed to be owed were ever received by him or that the evidence as to duress is insufficient. It contends that, based on a purchase- and-mark up reconstruction, the taxpayer should have paid addi[546]*546tional taxes and was liable for them and penalty thereon. It further contends that the burden is on the taxpayer to make a prima facie case entitling him to the refund; that he can only do this by producing the sale invoices, which it admits would settle the issue, but that in the present absence of the invoices themselves there is no evidence available by which a prima facie case can be established, and that therefore the judgment in favor of the taxpayer cannot stand:

This case has received meticulous attention from the full court. All of us are united in agreement that the penalties were wrongfully imposed in view of the fact that they were imposed prior to the amendment of Code Ann. § 92-3426a. Hawes v. Smith, 120 Ga. App. 158, 160 (169 SE2d 823).

All of us are agreed that the burden is on the taxpayer to establish a prima facie case for refund. Oxford v. Shuman, 106 Ga. App. 73, supra; Hawes v. Smith, supra; Hawes v. Bigbie, 123 Ga. App. 122 (179 SE2d 660). A majority of this court feel that this burden has in fact been carried by the taxpayer. "The best evidence which exists of the fact sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.” Code §38-203. Whether or not the loss of the boxes of original invoices was satisfactorily accounted for at the time of this trial must depend to some extent on the credibility of the taxpayer. The jury found that he made them available at the time of the original State audit. The State at that time indicated it was not concerned with them. Subsequently, it failed to subpoena them by giving a ten-day notice to produce under Code Ann. §92-3432a, although there was no necessity for it to do this in view of the taxpayer’s co-operation in the audit. Anderson v. Blackmon, 123 Ga. App. 128 (179 SE2d 657). Thirdly, and more seriously, the State refused to allow the taxpayer the mandatory administrative hearing which had been demanded under Code Ann.§ 92-8436 in 1959 at a time when the records were also available. Regardless of what burden there might be on the State to follow statutory procedures which would have obviated an approximately ten-year delay in examining the sale invoices, all of this evidence is relevant to the question of whether there was a "satisfactory” explanation of the loss of the invoices when another company moved [547]*547into the building in which they had been stored prior to the hearing before the auditor and his report in 1967. As to the latter, there was detailed evidence of the manner in which the tax reports submitted were made up from work sheets taken from the daily sale invoices themselves and miscellaneous receipts as shown on day books, and that they did in fact accurately represent taxable sales. The invoices, as conceded by the State, could have been introduced in evidence under the business records rule. Code Ann. § 38-711. Testimony that the monthly tax statements which were introduced in evidence were correct and were accumulated from this source therefore, under the circumstances of this case, constituted evidence of the fact to be proved and the testimony was sufficient, under the any evidence rule to support the verdict and judgment.

Judgment affirmed.

Pannell, Quillian and Whitman, JJ., concur. Evans, J., concurs in the judgment. Bell, C. J., Jordan, P. J., Hall, P. J., and Eberhardt, J., dissent.

Cite This Page — Counsel Stack

Bluebook (online)

181 S.E.2d 708, 123 Ga. App. 543, 1971 Ga. App. LEXIS 1293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawes-v-shuman-gactapp-1971.

Opinions

Related

Cite This Page — Counsel Stack