In your letter of February 9, 1942, you direct our attention to Article 12 of House Bill No. 2, 47th Legislature, and submit to us for our opinion the following:

"It appears to be the practice of people engaged in the sale of cosmetics and radios to add two per cent to the sale price of the article and collect that much in addition when the sale is made and report the two per cent collected as the tax due this Department. The question has arisen as to whether or not the tax also applies against the additional amount collected at the time of the sale. For example: a deal of sells a radio at the sale price of $100buthecollects$ 102 from the customer. Should the seller base his tax on the sale price of $100orontheamountof$ 102 actually collected?"

The first and last paragraphs of Section 1, Article 10, House Bill No. 8, 47th Legislature, read as follows:

*2 Eom. George H. Sheppard - Page 2 "Each person, partnership, assoolation, or corporation selling at retail new radios or new cosmetios, shall make quarterly on the first days of January, April, July, and October of each year, a report to the comptroller, under oath of the owner, manager, or if e corporation, an offiear thereof, showing the aggregate gross receipts from the sale of any of the above-named items for the quarter next preceding; and shall at the same time pay to the comptroller a luxury excise tax equal to two (2) per cent of said gross receipts as shown by said report. . . "Nothing herein shall be construed so as to require payment of the tax on gross receipts hercin levied more than once on the proceeds of the sale of the same article of merchandise. A rateil sale as used herein, means a sale to one who buys for use or consumption, and not for reaale. Gross reooipt of a sale means the sum which the purchaser pays, or agrees to pay for an article or commodity bought at retaill sale."

The tax levied by the above geotion of H. B. No. 8 is a gross receipts tax, not a sales tax. It is not levied against the retaill purchaser. Notwithstanding that he may be required to pay to the seller a greater amount on account of the tax, the requirement is one which is made by the seller and not by the taxing statute. The purchaser does not under such circumstances pay the tax. He is merely paying more for the merchandise. The tax is paid later. From Lash's Products Company v. United States, 278 U. S. 178, 75 L. Ed. 251, ve quote: "This is a suit to reoover the amount of certain taxes paid under the Revenue Act of 1918 (Act of February 24, 1919, 0. 18, 1628, 40 Stat. 1057, 1116). By 1628 there is imposed on 'soft drinks.

*3 Hon. George H. Sheppard - Page 3

Te cite also People ve. Werner, 5 H, E, (2) 238, 111.; E1mer Candy Co. ve. Faintelroy, 19 Fed. (2) 664.

Our answer to your question is that the seller should beee his tax on the sale price of $\$102.00$ on the fact case presented.

This opiaion is in 1100 of our Opinion No. 0-4403, which is withdrawn.

GRL:MBT