SMOTKIN et al.
PETERSON et al
Judgment set aside and cause remanded with instructions.
James Elliott Dunseath, of Tucson, James E. Flynn, of Phoenix, for appellants.
Fred O. Wilson, Atty. Gen., Richard C. Briney, Asst. Atty. Gen., for appellees.
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concur.
[73 Ariz. 2] This is an appeal from a declaratory judgment of the superior court of Pima County.
The facts are that during the year 1949 the Arizona State Tax Commission, hereinafter called the commission, sought to [73 Ariz. 3] collect a sales tax from appellants under the provisions of the Arizona Excise Revenue Act of 1935, A.C.A.1939, § 73-1301 et seq., for the privilege of engaging in business as contractors in Pima County, Arizona.
The commission made demand upon appellants to pay to it the $ 1 license fee and to file their returns as prescribed by the Act which appellants refused to do. The commission then requested that appellants make available to it or permit its agent to examine the books, records, and papers for the purpose of ascertaining the amount of taxes due under the law. The latter request was also refused. Thereafter the commission issued and served summons upon appellants to appear before it on a day certain for a hearing on the matter, which were also ignored.
The commission then filed this action in the Pima County superior court and in its complaint alleged that appellants were engaged in business in that county as contractors, setting forth the above demands and refusals and asked for a declaratory judgment declaring the rights, duties, status and legal relationships of the commission and the appellants in the premises and that appellants be required to pay the license fee of $ 1 and to exhibit all of their books, records and data to the commission for the purpose of enabling it to obtain facts upon which to base the assessment of the tax provided by the Act to be paid
Appellants, in their answer, attempted to meet the issues by denying that they were engaged in the contracting business and affirmatively alleging that they were engaged in the business of selling real estate and that they were therefore not subject to the payment of the tax sought to be collected. They admitted their refusal to pay the license fee of $ 1 or the sales tax prescribed by the Revenue Act and that they refused to permit an examination by the commission of their books and records.
The trial court granted a motion of the commission for a summary judgment and entered judgment thereon, the material parts of which read as follows:
"Now, therefore, it is ordered, adjudged and decreed by the Court that the law as it relates to the rights, duties, status and legal relations of the parties to this action in the premises under the Excise Revenue Act of 1935 ...