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Dairy and Consumers Co-Op. Ass'n v. Arizona Tax Commission

Supreme Court of Arizona

April 28, 1952

DAIRY AND CONSUMERS CO-OP. ASS'N
v.
ARIZONA TAX COMMISSION et al

Judgment affirmed.

Fred V. Moore, of Phoenix, for appellant.

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.

OPINION

Phelps, Justice.

This action was brought by appellant against the appellees seeking to recover privilege taxes for a portion of the year 1950, paid by it under protest, and to have the court declare it to not be subject thereto. The tax was levied under the provisions of section 73-1306, A.C.A.1939.

There was no dispute as to the facts. The court found that there was an actual [74 Ariz. 36] bona fide controversy between appellant and appellees as to the construction and application of the provisions of section 73-1306, supra, affecting the rights, duties, status and legal relations of the parties and was therefore

Page 466

a proper case for declaratory relief. After being fully advised as to the law in the premises, it resolved the issues in favor of the appellees and entered judgment accordingly, from which appellant appeals.

Section 73-1306, supra, is a part of the Excise Revenue Act of 1935 and reads as follows:

"Any person engaging in any business classified in subsection (a), paragraph 1, or in subsection (g), who sells the products of such business at retail in this state shall be required to make return of the gross proceeds of such sales and to pay the tax at the rate imposed by subsection (d), paragraph 1."

Subsection (d), paragraph 1, referred to is a part of section 73-1303 of the Act and in so far as here material, provides that the tax to be paid under the provisions of section 73-1306, supra, shall be:

"At an amount equal to two per cent of the gross proceeds of sales or gross income from the business upon every person engaging or continuing within this ...

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