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Affidavit of illegality. Before Judge McWhorter. Chatham Superior Court. February 13, 1957.
The Dixie Construction Company of Georgia, Inc., filed in the Superior Court of Chatham County its affidavit of illegality together with eventual condemnation money bond to the entry of levy on personalty and sales tax fi. fa. issued by the State Revenue Commissioner.
The parties stipulated the following facts: On March 17, 1951, the Dixie Construction Company of Georgia, Inc., defendant in fi. fa., entered into a contract with the Florida-Georgia Tractor Company of Jacksonville, Florida, for the purchase and sale of two tractors and a motor grader. The net purchase price of the equipment was $59,187.08. The equipment, which was the subject of the aforesaid purchase, was delivered by the seller, Florida-Georgia Tractor Company, to the purchaser, Dixie Construction Company of Georgia, Inc., at Savannah, Georgia, on April 17, 1951. The equipment was purchased by Dixie Construction Company of Georgia, Inc., for use and consumption within the State of Georgia, and, at all times after it was delivered, was used by the Dixie Construction Company of Georgia, Inc., in Georgia.
No sales tax was collected or returned by the Florida-Georgia Tractor Company on the said sale, and no sales or use tax return or remittance of the use tax with regard to the said purchase was ever made by Dixie Construction Company of Georgia, Inc. On July 28, 1954, a proposed assessment of additional tax, penalty and interest on the purchase was made and mailed to Dixie Construction Company of Georgia, Inc. On the 23rd day of August, 1954, Dixie Construction Company of Georgia, Inc., duly entered its protest to the proposed assessment and requested a hearing before the Commissioner of Revenue. No sales and use tax return was ever filed by Dixie Construction Company of Georgia, Inc., for the month of April, 1951. Counsel further stipulates that, except for the month of November, 1951, taxpayer has regularly filed sales and use tax returns for each and every month there after.
1. The defendant contends that any liability for the use tax purchase made by it in April, 1951, was barred by the statute of limitation as set forth in Code 92-3447(a). This section, as originally drawn, read as follows: "The amount of taxes imposed by this law shall be assessed within three (3) years after such taxes became due and payable, and no proceeding of any kind for the collection of such taxes, interest or penalty shall be begun after the expiration of such period." In 1953 the Code section was amended by adding the following: "Provided, however, in the case of a false or fraudulent return with intent to evade payment of taxes imposed by this Act or a failure to file a return, the tax may be assessed or a proceeding in court for the collection of such tax may be begun without assessment at any time." At the time that this amendment was enacted three years had not elapsed and the statute of limitation as provided in Code 92-3447 (a) as originally enacted had not run as to the purchase in question.
The controlling question in this case is whether the amendment would affect a sale which had taken place less than three years prior to the passage of the amendment.
In Walker Electrical Co. v. Walton, 203 Ga. 246, 249 (46 S. E. 2d 184) it was held: "The rule with reference to retrospective statutes has been repeatedly held by this court to be limited to substantive rights and not to the remedy. In Knight v. Lasseter, 16 Ga. 153, it was held: 'For the purpose of operating on the remedy only, the legislature may, undoubtedly, pass retrospective acts; and for such purposes, they are not unconstitutional.' In Searcy v. Stubbs, 12 Ga. 439, it was held: 'Remedial statutes are not inoperative, although of a retrospective nature, provided they do not impair contracts, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations.'
"In Aycock v. Martin, 37 Ga. 124, 177 (92 Am. D. 56), it was held: 'It is now clearly established by repeated decisions that the legislature may pass laws altering, modifying, or even taking away remedies for the recovery of debts without incurring a violation of the clause in the Constitution which forbids the passage of ex post facto laws, or laws impairing the obligation of contracts.'
Statutes of limitation look only to remedy and not to substantive rights, and, unless the cause of action is barred at the time of the passage of the act extending the statute of limitation, it will be effective. Atlantic Loan Co. v. Peterson, 181 Ga. 266 (182 S. E. 15); Darby v. Cook, 201 Ga. 309 (39 S. E. 2d 665); United States Fidelity &c. Co. v. Toombs County, 187 Ga. 544 (1 S. E. 2d 411). "No man has a vested right not to pay a tax or other obligation which he really owes. So that an extension of the time within which the obligation may be enforced, or the entire abolition of the limitation, is within rightful legislative power." In re McClure Co., 21 Fed. 2d 538, 540.
In the present case the 1953 amendment of Code 92-3447 (a) had the effect of extending the statute of limitation as to the collection of the use tax, and the trial judge did not err in ruling against the affidavit of illegality.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.
Eugene Cook, Attorney-General, H. Grady Almand, Jr., William L. Norton, Jr., Assistant Attorneys-General, Sheldon C. Dorough, contra.
Hitch, Miller & Beckmann, John E. Simpson, R. M. Hitch, for plaintiff in error.
DECIDED MAY 17, 1957.
Saturday May 23 01:43 EDT

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