(dissenting).
The first sentence of Art. 20.02, Taxation-General, V.A.C.S., reads:
“There is hereby imposed upon each separate sale at retail of tangible personal property made within this State a limited sales tax at the rate of two per cent (2%) of the sale price of each item or article of tangible personal property when sold at retail in this State.”
The term “sale price” is defined in Sec. (L) (1) Art. 20.01, id., as follows:
“ ‘Sales Price’ means the total amount for which tangible personal property is sold, valued in money, whether paid in money or otherwise, without any deduction on account of any of the following:”1
Section (B) of Art. 20.05, id., reads:
“Method Retailer is to Use in Computing Tax. The limited sales tax levied under Article 20.02 hereof shall be computed and paid to the Comptroller on the basis of two percent (2%) of all receipts from the total sales of such tangible personal property sold by such retailer under said Article.”
*667The term “receipts” is defined in Sec. (D), Art. 20.01, id., as follows:
“Receipts.
“(1) ‘Receipts’ means the total amount of the sale or lease or rental price, as the case may be, of the retail sales of retailers, valued in money, whether received in money or otherwise, without any deduction on account of any of the following:” 2
Art. 20.04, id., entitled “Exemptions”, does not exempt sales less than twenty five cents.
The troublesome provision is, of course, Sec. (A) of Art. 20.02, id., which reads:
“Method of Collection and Rate of Limited Sales Tax. The tax hereby imposed shall be collected by the retailer from the consumer.
“(1) The tax shall be as follows and shall be collected by using the following bracket system formula on each retail sale:
$ .01 to $ .24 No Tax
.25 to .74 $ .01
.75 to 1.24 .02
1.25 to 1.74 .03
1.75 to 2.24 .04
Provided, further, that for each additional fifty cents (50$⅞) of purchase, or fraction thereof, one cent (1⅜⅞) limited sales tax shall be collected thereon.
“(2) The use of tokens or stamps for the purpose of collecting or of enforcing the collection of the tax imposed in this Chapter or for any other purpose in connection with such tax is prohibited.”
It is my opinion that this section when considered with the other provisions of the Act, particularly those above noted, fixes only the amount of the tax imposed upon retail sales and the receipts therefrom which may be collected from the individual purchaser. It may, at first blush, seem very unfair that the tax levied on sales under twenty five cents cannot be collected, as such, from the individual purchaser even though the retailer is required to account for such sales in remitting the tax due by him to the State. There are at least two sound answers to this criticism, (1) the retailer may recoup his tax losses on sales under twenty five cents by collecting from the purchaser more taxes on other sales than he is required to remit to the State (2) the retailer may increase the price of his product.
This Limited Sales Tax is obviously a bracket tax insofar as the purchaser is concerned. He does not always pay a tax of two per centum. Sometimes, he pays more; sometimes, he pays less. It is only when the sale price is exactly fifty cents, or some multiple thereof, that the purchaser pays to the retailer an exact two per cent tax. The first sale price on which a tax is collected by the retailer from the purchaser is twenty five cents. This tax is one cent, a four per centum tax; yet the retailer pays to the State on this sale a tax of only two per cen-tum. Within this same bracket range for collecting taxes from the purchaser is a sale of seventy four cents. The tax collected is one cent, a rate of tax of 1.4 per centum. In the next higher bracket for collecting the tax from the purchaser is a seventy five cent sale. Here the tax is two cents, a rate of 2.7 per centum. In this same bracket a sale of $1.24 is taxed at a rate of 1.6 per centum.
It is obvious that the Act does not purport to authorize or guarantee to the retailer that he will under all circumstances collect from the purchaser on each sale the equivalent of the tax which he must remit to the State. The Act very plainly invokes the law of averages to balance its impact upon retailer and purchaser in order to justify its fairness and to give validity to the pro*668vision that the tax imposed is to he collected by the retailer from the consumer.
Other Courts have considered similar statutes. I quote from White v. Washington, 49 Wash.2d 716, 306 P.2d 230, Supreme Court, as follows:
“* * * [I]f the bracket schedule is examined, it will be seen that on sales at or near the top of each bracket, the full amount of the tax is not collected from the buyer. The theory of the bracket system is that, on sales involving fractions of less than one half cent, the seller will absorb the tax; where as on sales involving a tax of more than one half cent or less than one cent, the buyer will pay an amount in excess of the actual tax. It is an overall application, the system is supposed to yield 3 percent on all sales, and this is generally found to be true. Of course, there are exceptions, where a seller deals in commodities all of which sell at a price which falls above or below a position in the bracket which yields exactly 3 percent. * * *
“It is true that it classifies sales for the purpose of applying the rate, but the rate remains constant throughout the schedule, and the schedule applies alike to every seller. In its general application, it imposes no hardship. It is only when a seller chooses to sell only items which are priced at a point on the schedule where less than the full tax is to be collected that he is forced to absorb part or all of the tax, and this is the exception rather than the rule.”
Of similar import is the decision in Smokey Mountain Canteen Company v. Kizer, 193 Tenn. 598, 247 S.W.2d 69, Supreme Court, and Stevens Enterprises, Inc. v. Kansas, 179 Kan. 696, 298 P.2d 326, Supreme Court. See also Piedmont Canteen Service, Inc. v. Johnson, 256 N.C. 155, 123 S.E.2d 582, Supreme Court, W. S. Libby v. Johnson, 148 Me. 410, 94 A.2d 907, New York Automatic Canteen Co. v. New York City, 8 A.D.2d 385, 188 N.Y.S.2d 119, 8 N.Y.2d 853, 203 N.Y.S. 905, 168 N.E.2d 709 and F. W. Woolworth v. Gray, 77 N.D. 757, 46 N.W.2d 295.
Appellees cite Winslow-Spacarb, Inc. v. Evatt, 144 Ohio 471, 59 N.E.2d 924, Supreme Court, as involving “a taxing statute and factual situation which more nearly approaches the ones presented to this Court than any other case found by appellees or cited by appellants.” I have examined this case. There the taxpayer had devices which delivered but a single drink for the price of five cents. The taxing statute, Gen.Code, § 5546-2, as the Court said “definitely states” and the Court quoted and italicized, “If the price is less than nine cents, no tax shall be imposed.” The Court very properly held that the statute meant what it said.
The Act before us is not a price fixing statute. The retailer may, so far as this Act is concerned, adjust his prices to meet any need occasioned by the imposition of this tax. Witness the rise in the prices of gasoline, cigarettes, beer, whiskey and other commodities subject to excise taxes when such taxes are increased. This is the only manner in which the retailer can protect himself from the effect of such tax levies. Appellees may go and do likewise. In fact, the Act seems to authorize this relief. In Sec. (D) (3), Art. 20.01, id., it is provided that “For purposes of the limited sales tax, if the retailer establishes to the satisfaction of the Comptroller that the limited sales tax has been added to the total amount of the sale price and has not been absorbed by him, the total amount of the sale price shall be deemed to be the amount received exclusive of the tax imposed.”
It is my opinion that the Act fairly imposes a tax upon appellees and that they should pay it. I, therefore, respectfully dissent.
. The deductions named are not relevant here.
. The deductions named are not relevant here.