Sales tax prosecution must proceed against the firm itself, not only one partner after severance

For default in payment of sales tax by a partnership concern, prosecution must be directed against the firm as such. Although partners may be jointly and severally liable under the sales tax rules, that liability does not displace the Act's requirement that the firm be properly proceeded against. Where the complaint against one partner is split up and the case continues only against another partner, the proceeding is not treated as a valid prosecution of the firm unless the firm is expressly charged in its own name and style. A conviction cannot stand on a partner-only prosecution for the firm's tax default.

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Issues: Whether, in proceedings for non-payment of sales tax, a prosecution could validly continue against an individual partner alone after the complaint against the other partner had been split up, or whether the firm had to be proceeded against as such.

Analysis: Liability for assessment and prosecution under the sales tax law attached to the firm as an entity. Though the rules required a partner-dealer to report the partnership and made the dealer and partner jointly and severally responsible, that rule did not override the Act. Where all partners are before the Court, the firm may be treated as represented by them; but once the case against one partner is separated, the proceeding ceases to be a prosecution against the firm unless the complaint clearly prosecutes the firm in its name and style. A prosecution only against one partner, after splitting up the case against the other, is insufficient to sustain conviction for the firm's tax default.

Conclusion: The conviction could not be sustained against the petitioner alone, because the prosecution was not against the firm as such.

Final Conclusion: The revision petitions succeeded, the convictions and sentences were set aside, and the accused was acquitted with refund of fines, if paid.

Ratio Decidendi: For default in payment of sales tax by a partnership concern, the prosecution must be against the firm as such, and a conviction cannot stand where the proceeding is continued only against one partner after the case against the other partner is severed.

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