STATE TAX COMMISSION et al.
SAM KNIGHT MINING LEASE, Inc
Fred O. Wilson, Atty. Gen., Chas. C. Stidham, Asst. Atty. Gen., for appellants.
Guynn & Twitty, of Phoenix, Howard A. Twitty, of Phoenix, for appellee.
Udall, Chief Justice. Stanford, Phelps, De Concini, and La Prade, JJ., concurring.
Udall, Chief Justice.
This appeal is by the State Tax Commission from a judgment awarding appellee, Sam Knight Mining Lease, Inc., a refund of excise taxes theretofore paid by it under protest. It is a companion case to State Tax Commission v. Miami Copper Co., 74 Ariz. 234, 246 P.2d 871.
In the instant case the appellee had erroneously but voluntarily paid $ 4425.10 to the Commission as excise taxes on subsidy payments made to it by the Metals Reserve Company -- a federal agency -- for the production [74 Ariz. 245] of over-quota copper during the period January 1, 1942 to July 31, 1946. It made an application for a refund of these overpayments under the provisions of section 73-1327, A.C.A.1939. With the approval of the attorney general -- which is a requirement of the statute -- a refund was made of the above amount. After the Supreme Court of Utah held that subsidy payments were taxable under their law, the Commission reversed itself and levied an added assessment against appellee for the precise amount theretofore refunded. This was paid under protest -- suit was brought and a motion for summary judgment for appellee was granted by the trial court. This appeal followed.
The record shows that the appellee, Sam Knight Mining Lease, Inc., sold the ores produced by it to the American Smelting and Refining Company,
"* * * at a price based upon the gold, silver, copper and lime values less certain deductions; that the price of the copper values was at all times herein mentioned based on domestic quotation for Electrolytic Wire Bars as published in the Engineering and Mining Journal of New York; that said quotation at all times mentioned herein was fixed at the ceiling price for copper as provided in Par. XI hereof."
By the motion for summary judgment it was further admitted that Metals Reserve Company made subsidy payments to appellee,
"* * * in the total sum of $ 442,510.79, which was the difference between the price received by the plaintiff for the sale of said copper ore and the additional items of expense incurred by ...