H. C. BUCHAN, JR., t/a NORTH WILKESBORO HARDWARE and SPARTA HARDWARE, v. EUGENE SHAW, Commissioner of Revenue of North Carolina.
(Filed 4 November, 1953.)
Taxation § 88c: Declaratory Judgment Act § 1—
G.S. 105-267 provides the sole remedy of a taxpayer to determine his liability for a sales tax, and he may not maintain an action under the Declaratory Judgment Act to determine his liability therefor.
Appeal by plaintiff from Clement, J., June Term, 1953, WilKes.
Civil action under the Declaratory Judgment Act to determine plaintiff’s tax liability under the sales tax statute.
Plaintiff is a licensed wholesale dealer and “sells a vast amount of merchandise to merchants for resale . . . outside of the State of North Carolina,” principally to licensed retail merchants of Virginia and Tennessee. He seeks a judgment adjudicating his tax liability on such sales. The defendant demurred for that the court has no jurisdiction over the subject matter of this action. The demurrer was sustained and judgment dismissing the action was duly entered. Plaintiff excepted and appealed.
W. II. McElwee, Jr., for plaintiff appellant.
Attorney-General McMullan and Samuel Behrends, Jr., Member of Staff, for defendant appellee.
*523Barnhill, J.
Ail action against tbe Commissioner of Revenue, in essence, is an action against tbe State. Insurance Co. v. Unemployment Compensation Com., 217 N.C. 495, 8 S.E. 2d 619. Since tbe State bas not waived its immunity against suit by one of its citizens under tbe Declaratory Judgment Act to adjudicate bis tax liability under tbe sales tax statute, tbe court properly sustained tbe demurrer. Insurance Co. v. Unemployment Compensation Com., supra. See also Bunn v. Maxwell, Comr. of Revenue, 199 N.C. 557, 155 S.E. 250; Rotan v. S., 195 N.C. 291, 141 S.E. 733.
Plaintiff’s only remedy is provided by Gr.S. 105-267. He must follow tbe procedure there prescribed.
In any event, tbe question tbe plaintiff seeks to bave tbe court answer by declaratory judgment is put at rest in tbe opinion in Phillips v. Shaw, ante, p. 518, tbis day filed.
Tbe judgment entered in tbe court below is
Affirmed.