Case Information
*1 ‘1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
a- 0. lnrnn Ano1”W OplruL
Honorable George H. Sheppard
Comptroller or Publio Aooounts
Austin, Texae
Dear Sir:
This ir in anawe whloh you may
1942,
o example I aubmlt the lbllowing. n A maintain8 Its orfloo in (the lnoorporated town 0s~ be 3,000 Inhabitants). It operate8 noorporated town or lee8 than and also operatea a store in an inoorporated tom or less than 3,000. Is euoh utility oorporatfon exempt rrom paying the ohaln atore tax on the StQrOa it operates in these towne?"
Honorable George Ii. Fhfhepprrd, Page 2
It is our opinion that Corporation A:,would be sub- jeot to the Chain ?tore Tax on all lte etoree located in unincorporated towus, irreapeotire of the population under Sea. 9, Art. 11116, Texas Penal Code, (Sec. 1, Art. 19, Aote 19&l, 47th Leg., H. B. MO. 8).
Article R. '. S. of Texas, a8 amended by Art- icle V of El. 9. Zo. 8, Acts Re$. SM. or 47th Leg., requires quarterly reports frox# "Caoh lndirldual, oompany, corporation or aasooletlon, owning, operating, managlng or oontrolllng any gaa, electrlo light, eleotrio power, or water worka, or water and light plant, located dthin an7 lncoruorated town in this State, and used for local sale and dletrlbu- or olty tlon In town or city and oherglng for suoh gas, eleotrlo lighta, eta." showfng the gross amount reoelvsd for suoh businees done in each such incorporated tom or oltp, and providing for the payment or an occupation tax baaed on 8uoh groaa reoelpte. No provision le made for suoh report and no suoh tax IS levied on auoh bueineasee conduoted unln- corporated towna.
The laet paragraph st said Art. 7060 reads am roiiowat
mAad provided further that :atllitiea paying an oooupetion tax under thie ATMole shall not hereafter be required to pay the lloense fee lm- poeed in Artlolr 50, House Bill BG. 18, Chapter 400, Aots or Forty-fourth Legislature, ror the or selling gas and leotrio 8ppllanoea privilege end part8 ior the repair6 thereof, in town8 of three thousand (3,000) or leaa in pcipulatlon ae- cording to the next preoeding Csneua.
Aa amended Acte 19Al, 47th Leg., H. B. #8, Art. v, 8 1."
It will be noted that those utilities pefing oooupation tax this Art.1410 shall not be required to pay the llcenee fee imposed in Art. 5a, B. B. i%. 18, Chap. l&O, Aots 44th Leg., ior the privilege of selllng gae and eleotrlc appliances and parts for the repair thereof, in towns 3,000 or leas population acaording to the last Fed- eral Gamma.
Konorable George Ii. Sheppard, Page 3
Seotlon 5, Art. 11116, Texas Penal Code, as amended Acts 194l, 47th Lag., H. EL NO. 8, Art. XIX, Sea. 1, epeol- floallp exampte those businesses now paplng an occupation tex measured by groea raoalpts,
It la our opinion, a8 heretofore expressed, (Opinion Ro. O-2507) that eeld Seatlone 5 and 5a, Art. lllld, Penal Coda of Texea, tax dlrrerent typea or stores, and that Sea- tlon 5a was included by the Leglaleture In order to aubjeot to the Chain Store Tax certeln stores not tax&d wnder the provtslona 0r Seation 5.
It may be pointed oukthat since no oooupatlon tax baaed on groae receipts has ever been levied paid on store@ ior the prlyllege of selling gaa and electric appllanoea sad parts for the repair thereor In unincorporated towns, such stores have never been axmpt from the payment of the tax un- der said Section 5.
Thla being true, we reach the conclusion that the provlalona or Artlole 7060 do not In an;plaa affeot the trx 12ablllt~ or auoh storea ior the reason that they have never been eubjeot to the payrnent of the Ohaia Stora Tax under Sao- to, but ara now, and have been, l lna a tlon 5s therein referred the enaotllunt of the Aot in 1935 aubjeot to ths tar un- der 580. 5.
We, therefore, hold that utllltlea even though pay- ing gross raoalpta tar under Artlole 7060 should be required to par a Ghaln Store Fax iOr the privilege of operating stores selling gee and leotrlo appllanoea and parts for the repair thereof In unlnaorporat*d townr the prcvialona of Peg. Art. 11116, Penal Coda, as amended Aots 1941, 47th Legia- lature, A. B. No. 6, Axt. XIX, Fee. 1.
We rurther hold that all atone o? Corporation A locatad in Incorporated tome of more than 3,000 population aooordlng to the next preoedlng 00~8~s are aubjaot to the Chsin Store Tax aa provided by Art. 5a, Hous? Bill Eo. 1.8, Chapter 400, Aots or 44th Lagielatuse, for the prirl- lage of selling gas and eleotrlo appllenoea and part8 for the repair thereor. The terms or ssld Sao. 58 apaoifieell~ tax such stores and they are not within the exemptlou pro- vided by Art. 7060.
Honorable Oeo~ge k i?heppard, Page k
Ztores of this oharaater, paying owupatlon tax me08~ea by groea raoeipte and loostea in inoorporataa towns of 3,000 or lees population aocording to euoh Census are exempt from the payment of the Chain l-tore TIIX under the provirialone of said Art. 7060. This appears to be the only exemption provided by the quoted paragraph oi that Artiole.
Very truly yours