It is quite true that the amount of the school sales was not disputed and was recognized by the State examiners as properly exempt from taxation. But the State contended that these sales had been included in the totals of his wholesale sales carried in his daily cash books and at the same time, in returning the tax, had again been deducted from the gross sales shown on the general ledger, thus resulting in the double deduction discussed hereinabove.
We pointed out that the taxpayer kept no proper record to indicate these sales or to differentiate them from the remainder of the gross sales shown on his general ledger. He, himself, said this (Record pp. 58, 63) and testified his charge tickets, which had been destroyed, were his only record to distinguish such sales. Other evidence was of like import (Record pp. 69, 87, 91, 94).
We have construed the pertinent provisions of Title 51, noted above, as requiring the keeping of accurate records of such exempt sales if they are to escape taxation; and non-compliance gives authority to the tax department to disregard such a claim of exemption and, on a proper showing of liability, to levy the tax on the gross, as for retail sales, as the provisions of the statute contemplate.
Concededly, determining the true fact is one of great difficulty, but as observed in our original opinion the evidence was persuasive to the position contended for by the State and having failed to comply with the statutory mandate as to keeping accurate records, appellant must suffer the penalty imposed for non-compliance and pay on the sales not so accurately recorded as exempt ones.
We cannot regard as convincing to a contrary view the claim that his credit tickets of these sales had been destroyed. His permanent records should have set up these sales so that an audit of the books would have accurately reflected their true character and, if the tickets constituted his record, prudence would have dictated that they be removed from his bakery for safekeeping rather than be destroyed.
Perhaps, as intimated in State counsel's brief on rehearing, it might not have overstrained judicial candor to have held the Pizitz sales to the same accountability, but there was a semblance of a record as to those wholesale sales, in connection with which the trial court accepted the taxpayer's testimony as true, and we will not recede from our affirmance of that court's judgment on that phase of the case.
We feel bound to adhere to our original conclusion and must deny the rehearing.
Opinion extended and rehearing denied.
All the Justices concur. *Page 660