This is an appeal from two circuit court judgments affirming a Department of Revenue (Department) decision denying a claim for a refund of sales taxes. We affirm.
Midland Ventures, Inc., a South Dakota corporation (appellant), has owned and operated a roller skating rink known as Rolla-way U.S.A. in Aberdeen, South Dakota. In the course of its operation of Rollaway U.S.A., appellant received receipts from the sales of tickets or admissions to its customers. The purchase price of these tickets or admissions included South Dakota retail sales tax as an element of the purchase price. For the period of November 1975 through April 1980, appellant paid a four percent South Dakota retail sales tax on these receipts. At this time, the statutory rate was three percent. For the period of May 1980 through December 1980 appellant paid a five percent sales tax when the statutory rate was four percent. Appellant applied for a tax refund, which the Department denied based upon Senate Bill 40.1 Enacted by the South Dakota Legislature in 1981, Senate Bill 40 amended the sales tax upward by one percent, retroactive to 1969. The bill became law in January 1981 and its constitutionality was upheld in State ex rel. Van Emmerik v. Janklow, 304 N.W.2d 700 (S.D.1981).
Appellant appeals the circuit court judgments affirming the Department’s denial of the tax refund, and alleges that the rule of Van Emmerik does not apply. The issue on appeal is whether the Van Emmerik rule prohibits a tax refund where a retailer did not collect the tax directly from the consumer.
The circuit court found as a finding of fact that appellant had collected sales tax from its customers and concluded that Van Emmerik applied, prohibiting the tax refund. Van Emmerik involved retail sales tax directly billed to and paid by utility customers. In Van Emmerik, this court upheld the constitutionality of the retroactive statute where the excess taxes paid by the utilities had been passed on to its customers who had shared in the public benefits of those collected taxes.
Appellant alleges that because it did not separately state the South Dakota retail sales tax when it charged its customers for admission tickets to Rollaway U.S.A. it did not collect the tax directly from the consumer. Rather, appellant contends it paid the tax on gross receipts and that Van Emmerik does not apply.
The retail sales tax is imposed on a retailer’s gross receipts. SDCL 10-45-2. The sales tax involved is actually the responsibility of the retailer, not the consumer. State ex rel. Van Emmerik v. Janklow, supra; SDCL 10-45-27. The retailer may pass the sales tax on to its customers as per the tax collection schedule, SDCL 10-45-23, or the retailer may simply fail to add the tax to the price paid by the consumer. SDCL 10-45-22. See State ex rel. Van Emmerik v. Janklow, supra.
In the present case, appellant calculated the gross sales tax by listing its receipts, reducing that amount by the percentage of tax collected from its customers to determine taxable receipts and then multiplying by four percent (or five percent) to determine the sales tax paid. The following formula represents this process: (Receipts 1.04 = Taxable Receipts X .04 = Sales Tax Paid). As Department correctly *302points out, if appellant was absorbing the tax and not passing the tax on to its consumers, the correct method of computing the tax would be four percent (or five percent) of “Receipts.”
In examining the evidence, the circuit court found that appellant included the South Dakota retail sales tax as an element of the purchase price of the admission tickets. Findings of fact will not be set aside unless clearly erroneous, SDCL 15-6-52(a), and we are not left with a firm conviction that the trial court erred. See In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970). We agree that appellant included the retail sales tax in the purchase price of the admission tickets and thus collected the sales tax from the consumer.
Further, we perceive that appellant is misreading Van Emmerik. Van Emmerik dealt with the legal incidence of the retroactive tax, not its economic incidence. The challenge in Van Emmerik went to the constitutionality of the retroactivity, not to the manner in which the tax was collected. Consequently, distinguishing Van Emmerik on the basis that the retailers utilized different methods to collect the tax fails since, by law, the retail sales tax is the retailer’s liability and is imposed on gross receipts; it is not the responsibility of the ultimate consumer.
We affirm the judgments of the circuit court.
FOSHEIM, C.J., and WOLLMAN and DUNN, JJ., concur. HENDERSON, J., dissents.. This one percent sales tax controversy has been the subject of previous litigation. See Matter of Sales Tax Refund Applications, 298 N.W.2d 799 (S.D.1980); Van Emmerik v. State, 298 N.W.2d 804 (S.D.1980); State ex rel. Van Emmerik v. Janklow, 304 N.W.2d 700 (S.D.1981).