State Dep't of Revenue v. Connolly, 578 So. 2d 675 (Ala. 1991). · Go Syfert
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State Dep't of Revenue v. Connolly, 578 So. 2d 675 (Ala. 1991). Cases Citing This Book View Copy Cite
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Ex parte STATE of Alabama DEPARTMENT OF REVENUE. (Re STATE DEPARTMENT OF REVENUE
v.
John P. CONNOLLY)
89-1807.
Supreme Court of Alabama.
Apr 11, 1991.
578 So. 2d 675
Don Siegelman, Atty. Gen., and Ron Bowden, Acting Chief Counsel, and Gwendolyn B. Garner, Asst. Counsel, Revenue Dept. and Asst. Attys. Gen., for petitioner. Christopher E. Connolly of O'Bannon O'Bannon, Florence, for respondent. Page 676
Steagall.
Published

Lead Opinion

STEAGALL, Justice

(dissenting).

In my opinion, the sales tax collected by a merchant pursuant to Ala. Code 1975, § 40-23-26, is not a “debt” owed by the merchant but is, rather, a direct tax levied on the retail consumer and held by the merchant for the benefit of the State of Alabama. Therefore, the tax belonged to the State when it was collected.

Ala.Code 1975, § 40-5-18, also provides that “[n]o property shall be exempt from levy and sale for the payment of taxes....”

For these reasons, I do not believe that the levy and execution for delinquent taxes by the Department of Revenue is contingent on the Department’s making an affirmative assertion of its rights under Ala. Code 1975, § 6-10-26.

I, therefore, respectfully dissent.

MADDOX, J., concurs.

Lead Opinion

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

HORNSBY, C.J., and SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur.

MADDOX and STEAGALL, JJ., dissent.

Dissent

In my opinion, the sales tax collected by a merchant pursuant to Ala. Code 1975, § 40-23-26, is not a "debt" owed by the merchant but is, rather, a direct tax levied on the retail consumer and held by the merchant for the benefit of the State of Alabama. Therefore, the tax belonged to the State when it was collected.

Ala. Code 1975, § 40-5-18, also provides that "[n]o property shall be exempt from levy and sale for the payment of taxes. . . ."

For these reasons, I do not believe that the levy and execution for delinquent taxes by the Department of Revenue is contingent on the Department's making an affirmative assertion of its rights under Ala. Code 1975, § 6-10-26.

I, therefore, respectfully dissent.

MADDOX, J., concurs.