This suit was filed by the Tennessee Oil Company, with its principal office at Dyersburg, to recover gasoline taxes paid under protest in the sum of $25,510.51. This amount included four items of tax, only two of which are involved in this appeal. At the trial before the chancellor, the commissioner conceded that complainant was entitled to recover the taxes set forth in the original bill as Schedules 2, 5, and 6, in the sum of $95.04, $175 and $408.63, respectively, and no appeal was taken from this part of the decree.
E.R. Moody was, at the time of these sales, a resident of Eloise, Dyer County, Tennessee. He operated stations for the retail sale of gasoline at Eloise and Midway in Dyer County. He also operated a retail sale station at Cottonwood Point in Missouri. Moody operated a bus service from Dyersburg to Eloise and used Shell Gasoline purchased from the Tennessee Oil Company, the same brand purchased for alleged export to Missouri. Moody purchased all of his gasoline from complainant, including "tax free" gasoline, on open account. All *Page 698 gasoline purchased by him was carried by complainant on one account, which was payable monthly. No tax was paid on this gasoline either by Moody or the oil company. A tax of two cents was paid on it in Missouri.
The section of the Code involved (1140, as amended) is as follows:
"Gasoline or distillate not previously the subject of an original sale in this State, stored in this State for export to points outside the State, shall not be included in the measure of the tax liability of any distributor or dealer; provided that such gasoline or distillate is stored in a separate tank marked `export tank'; Provided that a bond is executed by the distributor or dealer that in the opinion of the Commissioner of Finance and Taxation adequately protects the State against loss of tax in case said gasoline or distillate is not subsequently exported outside the State; Provided the gasoline or distillate stored for export longer than a period of sixty days must be included in the measure of the tax liability of the distributor or dealer so storing such gasoline or distillate."
The position of the state as to the so-called export gasoline is set forth by R.L. Weakley, the director of Gasoline Tax and Oil Division of Tennessee. He says:
"Q. In other words, if the distributor carries it out himself, or ships it out by carrier, it is all right; but if a man comes in and buys it and comes and gets it himself, the tax has to be paid on it, irrespective of the fact whether you know it went out of the state or not; is that right? A. Yes, that is right.
"Q. In other words, if you knew definitely that it had gone out of the state, but had been hauled by the man's own truck, you would still hold him for taxes? A. Yes, under the regulations." *Page 699
There were no written regulations; but this was, in fact, a custom.
There is no contention by the State that it lost any revenue by the gasoline exported to Browder. On the contrary, the trucks were checked and they corresponded in amount to the gasoline reported as export. This was also the situation with respect to the gasoline sold to Moody and hauled to Missouri and the tax there paid.
It seems to be argued that after the words in the first paragraph of the statute "stored in this State for export" should be added the words "and that is to be carried or sent by the oil company" to points outside the state, etc. In other words, the State contends that in order for the exported gasoline to be free from the tax it must be carried or sent across the state line by the oil company.
The writer cannot agree with this contention. The statute does not so state, and this should not be read into the statute. This is a matter of legislative concern. This very thing was contemplated when the very next paragraph of the law provided for the execution of a bond to protect the state "against loss of tax in case said gasoline or distillate is not subsequently exported outside the State."
Had such a situation as the State contends been contemplated, the legislature could have easily added, after the words in the second paragraph "subsequently exported outside the State," the words "by the oil company or its agent."
No construction of a statute is necessary if the language creates no doubt of the legislature's intent. State v.Howard, 139 Tenn. 73, 201 S.W. 139; Hickman v. Wright,141 Tenn. 412, 210 S.W. 447. *Page 700
Words are to be used in their natural and ordinary sense.Sanford Realty Co. v. City of Knoxville, 172 Tenn. 125,110 S.W.2d 325; Tobin, Commissioner, v. Estes, 168 Tenn. 403, 79 S.W.2d 550; Hedges v. Shipp, 166 Tenn. 451,62 S.W.2d 49.
There must be some ambiguity arising from the words used, or the different sections of the Act, or there is no need for construction, and the person asking for construction must point out the ambiguity. Mathes v. State, 173 Tenn. 511,121 S.W.2d 548; Hickman v. Wright, 141 Tenn. 412, 210 S.W. 447.
The active loss of revenue will not justify the alteration of the clear terms of the Act.
It is incumbent on the dealer to show that the gasoline is exported.
The original sale is to be made for export. One cannot buy gasoline from a dealer and subsequently sell for export, for it would not be gasoline "not previously the subject of an original sale in this State."
For the reason given, the writer is of the opinion that the decree of the chancellor was correct and should be affirmed, and therefore respectfully dissents from the majority opinion.