fact that prescription label was required by law did not exempt typewriters used to type the labels
How later courts described this case
- fact that prescription label was required by law did not exempt typewriters used to type the labels
Written by the judges who cited it.
The opinion
Locher, J.,
concurring in part and dissenting in part. Although I fully endorse the court’s treatment of most of the issues presented in the case at bar, I cannot join with it in upholding the Board of Tax Appeals’ decision concerning the taxability of appellant’s typewriter purchases.
Federal law, i.e., Section 352 (e), Title 21, U.S. Code, mandates that certain information on prescription labels be typewritten. Thus, appellant, if it is legally to make pharmaceutical sales, must have a typewriter. The typewriters which appellant employs in its operation are used exclusively to type the labels and, thereby, comply with the federal statute.
R.C. 5739.01 (E) provided, in pertinent part, that: “ ‘Retail sale’ and *178 ‘sales at retail’ include all sales except those in which the purpose of the consumer is * * * (2) * * * to use or consume the thing transferred * * * directly in making retail sales * * Curiously, the court finds that appellant’s typewriters are not used or consumed “directly” in making retail sales. What could be of more direct use in making a retail sale, however, than an item which, if not used, would preclude the very consummation of the sales transaction? In the context of the case at bar, but for the typewriters, there could be no legal sale.
Notwithstanding the decision in Fyr-Fyter Co. v. Glander (1948), 150 Ohio St. 118 [ 37 O.O. 432 ], it is not only a violation of both the explicit language and the intent of R.C. 5739.01 (E) but also works a patent and fundamental injustice to assess appellant, as the majority does today, for purchasing an item which the lawful conduct of his profession necessitates. Consequently, I must dissent from that portion of the court’s opinion which finds appellant’s purchase of typewriters to be a taxable event.
Holmes and J. P. Celebrezze, JJ., concur in the foregoing opinion.