concurring in part and dissenting in part:
The computation and assessment of liability by the Department for the retailers’ tax and use tax, taken from various records of those participating in sales, results in a prima facie case against the taxpayer. (Masini v. Department of Revenue (1978), 60 Ill. App. 3d 11, 14, 376 N.E.2d 324, 327.) Taxpayers cannot overcome the prima facie case by oral testimony. Adequate record keeping is necessary. (Copilevitz v. Department of Revenue (1968), 41 Ill. 2d 154, 156, 242 N.E.2d 205, 207.) The taxpayer’s argument that the prima facie rule should not apply to him because he is a hauler, not a retailer, cannot be sustained. We agree that all cases cited by the Department involved obvious retailers (Masini, 60 Ill. App. 3d 11, 376 N.E.2d 324; Copilevitz, 41 Ill. 2d 154, 242 N.E.2d 205; American Welding Supply Co. v. Department of Revenue (1982), 106 Ill. App. 3d 93, 435 N.E.2d 761; Pedigo v. Department of Revenue (1982), 105 Ill. App. 3d 759, 434 N.E.2d 860, appeal denied (1982), 91 Ill. 2d 572; Central Furniture Mart, Inc. v. Johnson (1987), 157 Ill. App. 3d 907, 510 N.E.2d 937, appeal denied (1987), 117 Ill. 2d 542, 517 N.E.2d 1084; Quincy Trading Post, Inc. v. Department of Revenue (1973), 12 Ill. App. 3d 725, 298 N.E.2d 789; Smith v. Department of Revenue (1986), 143 Ill. App. 3d 607, 493 N.E.2d 653; Terrace Carpet Co. v. Department of Revenue (1977), 46 Ill. App. 3d 84, 360 N.E.2d 153); or businesses assessed use taxes for items purchased without payment of sales taxes in Illinois (Colorcraft Corp. v. Department of Revenue (1986), 112 Ill. 2d 473, 493 N.E.2d 1066; Sundstrand Corp. v. Department of Revenue (1975), 34 Ill. App. 3d 694, 339 N.E.2d 351; Klein Town Builders, Inc. v. Department of Revenue (1966), 36 Ill. 2d 301, 222 N.E.2d 482; United Air Lines, Inc. v. Johnson (1981), 84 Ill. 2d 446, 419 N.E.2d 899). However, to allow a business which could be hauling and selling at retail to evade the prima facie rule does not make sense, and would put an untenable burden on the State in policing the payment of taxes. Adequate records must be kept, even as in this case, where the business is an unregistered account. The circuit court determined that Department regulations (86 Ill. Adm. Code §130.415 (1985)) did not govern the outcome of the case, basically holding that Sprague was not a retailer as defined by section 1 of the Act. This interpretation is incorrect.
However, the evidence indicates the correctness of the circuit court’s inferences that the parties intended that the title to the limestone passed to the consumer when Sprague picked it up as the consumer’s agent. All of the evidence indicated the gross profit (defined for purposes of this dissent as the sum received from the customer, less the amount paid by Sprague to the quarries for the limestone and the sales tax charged at the quarries) received by Sprague was the equivalent to his tariffs on file with the Illinois Commerce Commission (ICC).
Sprague’s hauling activities were governed by the Illinois Commercial Transportation Law (Ill. Rev. Stat. 1987, ch. 95½, par. 18c—1101 et seq.). The ICC covers “motor carriers,” which are defined as persons transporting property for hire. (Ill. Rev. Stat. 1987, ch. db^z, par. 18c — 1104(19).) I see no justification for ignoring this classification when determining Sprague’s status as an agent in contrast to one involved in resale.
The Department’s auditor, in preparing the return assessing the disputed tax, fixed the retailers’ tax based on the hauling rate established from the tariff which had been filed with the ICC by Sprague. He did not include the amounts paid to the quarries, because of the collection of the retailers’ tax at the quarries. Obviously, the Sprague records were sufficient to establish the breakdown of the cost of the rock at the quarries, the retailers’ tax paid to the quarries, and the actual cost of hauling.
Section 2 — 401(2) of the Code is not applicable to the facts in this case. Using that section presupposes that Sprague is a seller of limestone. If he is nothing more than an agent hauler, which the circuit court determined, then section 2 — 401(2) should not be considered. To conclude, as does the majority, that, because of the section, title passed to Sprague when the seller quarry placed the limestone in Sprague’s truck escapes logic. It is more reasonable to say, if Sprague is an agent for the consumer, the delivery to Sprague resulted in title being vested in the consumer.
I also see no similarity with the facts in Federal-Bryant Machinery Co. v. Department of Revenue (1968), 41 Ill. 2d 64, 241 N.E.2d 857, and the present case. There is no evidence of solicitation of orders, or the forwarding of orders. The Sprague business advertises hauling, and the business is licensed as a hauler. If you ask him to move a commodity from one port to another, you would pay the fixed tariff but retain title. If you want rock from a quarry, you actually reimburse Sprague for his advances and pay him for the hauling at the fixed tariff.
This case rests not on the issue of title, but on the issue of record keeping and itemized-billing procedures. Our supreme court stated that statutory provisions requiring that those who engage in retail sales keep adequate records are mandatory. (Copilevitz, 41 Ill. 2d at 157, 242 N.E.2d at 207.) I find no problem in extending these requirements to those who are not registered with the Department as retail sellers but who should, because of their activities, be audited by the Department. In the present case, the Department would require, in addition to records in existence at Sprague’s business, copies of itemized bills from Sprague to the consumer and a written contract between Sprague and the consumer providing for title to flow from the quarries to the consumer. I find the contract requirement under the facts in the case ludicrous.
Sprague operates out of Harrisburg, population 9,300, in Saline County, population 27,300. His customers necessarily include people from all over the area. When someone calls for a load of gravel for their driveway, to require them to come into the office and sign a written contract, or to have Sprague or one of his employees drive to their home to obtain a signature prior to going to the quarry, would be unreasonable. Sprague, as are many like-kind businesses throughout the less-populated counties of this State, is in the business of hauling, and is not necessarily a retailer. The nature of his business requires a practical look at the Department’s call for written agreements, and that look must result in a negative response to the call. While the Department justifiably has discretion in adopting regulations, we are not required to blindly sustain the application of those regulations. Terrace Carpet Co., 46 Ill. App. 3d at 90, 360 N.E.2d at 157.
The requirement for itemized billing is more reasonable, and should be adopted by those in the hauling business. While the hauling business could be operated so that the retailers’ tax liability is never incurred, the nature of the business could allow for buying rock, gravel, coal, and fertilizer, and reselling to the consumer. However, there was sufficient documentary evidence to overcome the prima facie case created by the auditor’s assessment. All of the evidence indicates Sprague was only receiving compensation based upon his tariff. Sprague should no more be called a retailer than a frog be called a prince.
I concur in the majority opinion as it relates to the use tax and the two pickup trucks. I dissent from the majority opinion, however, insofar as it reverses the circuit court on the assessment of the retailers’ tax.