Bayer v. Payne

I cannot join in the majority disposition of this appeal because it relies upon our earlier decision, Bayer v. Johnson, 400 N.W.2d 884 (S.D.1987) {Bayer III), which I consider to be an ill-conceived and ill-advised decision that should be overruled.

The decision in Bayer III was grounded on the activities in which Bayer rendered the services that resulted in his purported tax liability. As the majority stated: “Bayer’s sales taxes paid under protest were based upon his business as a bookmaker. Since the payments were made upon an unconstitutional activity, we hold Bayer cannot recover.” Id. at…