Case Information
*1 THEA~O~~EY GENERAL OFTEXAS AUSTXN 1,. TEXCAS
GERALD Co MANN
5t?zzaz Honorable George ?I. Sheppard
Comptroller of Public Accounts
Austin, Texas Opinion No. O-3637
Dear Sir:
Re: Authority of Comptroller~to permit a transfer of the chain store license Issued to a utility store operating in a town of less thank three thousand '(3,000) Ynhabltants to a store In a citg'having a population of more than three thousand (3,000), in vlew~of the amendment to Article 7060, Revised Civil Statutes.
From your letter of June 4, 1941, and attached data we gather the following facts:
'A certain utilities company operating stores in several towns of less than three thousand (3,000), Inhabitants, timely paid the fees fixed In Section 5a of Article lllld, Vernon's Annotated Penal Code, obta'lnlng licenses to operate during the year 1941 In said respective towns.
Article 7060, Revised Civil Statutes levies a gross receipts tax, or occupation tax measured by gross receipts, on certain utlll- ties. That statute was amended by Article 5 In House Bill No. 8, Forty-seventh Legislature, effe!ctive May 1 of this year. Said Article 5 of House Bill 8 contains~ the following paragraph:
"And provided further that utllltles paging
an occupation tax under this Artlcle'shall not here- after be required to pay the license fee imposed In Article 5a, House Bill No. 18, Chapter 400, Acts of Fortg;fourth Legislature, for the privilege of sell- lng~gas and electric appliances and parts for the .repalrs thereof,'Fn tolrns of three thousand (3,000) or less in population according to the next preced- ing Federal Census."
Said utllitles company pays the tax levied by sald~ iicle 7060 on the stores thus operated In said towns of less Art *2 Honorable George H. Sheppard, page 2 o-3637 than three thousand (3,000) population. Hence as to sucti stores the utilities company may not hereafter be required to p&g the license fee fijied iLn Sectlon 5 of said Article 11116; Said utilities company has requested you~'to permjt the transfer of the licenses thus Issued for the year 1941 to-the storks oper- &tlngTn towns of less thiui three thtius&na'(3',000) Inhabitants to.stores In cl'tles ~of popUl.%tlWtiore'thafi 'three thousariV (~3,000). The tax on such-'itores'~Qas.'pald prior to the enact-' i&&t of H&se Bill No; '8 and we are-'adviaed,that the stdr8s'ln tieid towns of less than three thousand~(3,,000)~'inhabit~nts'wlll contlinie to opepate. You request our opinion-'ah tb whether the Comptroller Is authorized to permit such a transfer. .,,
-,T'he net result of allowing sucK'a tiiansfer Would be to refund a' part of the 1941 chain store tax paid bn' these" stoi%s operating in towns of less than three thbutiana (3;OOO) inhtibltants. The statuttis howhere provide for such~ a transfer dr refund. The quoted part o'f Article 5, R.B. 8’; merely ~PO- vides that the utilities company """shall not hereafter be r6;' qulred to pay" the.'chain store tax~bn these particular stbi-es. W&do not believe an lhtentlon to make's r&fund, even"thotigh iiiddirectlg', can"b6'gleaned from this language. The tax for'1941 had been paid, a' fact known tb the Legislature. Had it been -'. ileslred to make a refund, 6r allow aiiy pabt of such paymgnts as a'credlt upon other taxes accruing, apt language could have been found- easily to evidence such Intent. Our answer to your ques- tion Is a negatlve one. .
Yours very truly ATTORNEY GENERAL OF TEXAS By s/Glenn R. Lewis Glenn R. Lewis Assistant GRL:db:wc
APPROVED JUN 14, 1941
s/Grover Sellers
FIRST ASSISTANT
ATTORNEX GENERAL
Approved Opinion Committee By s/BWB Chairman