We received your letter of September 30;1939, in which you request our opinion on the following question:

May a manufacturer of carbon black consolidate his sales of carbon black sellln below 4 cents a pound with those 6elIlng for more than & cents per pound and thus be able to pay a tax on this average?

APtlcl& 7047, SectId 45, Stibdlvlslon (a), Revised Civil Statutes of Texas, reads as follows:

"There Is hereby levied an ddcupatlon t&x 6n every peiison In this State manufacturing or ptioducing carbon black; sala tax to be one- twelfth of one.cent, (1112 of I#) peti pound on all carbon black produced or manufactured where the market value Is four cents (4#) per pound or less and three per cent (3$)of the value of all carbon~black proi%.zced or manufactured where the avera e market value Is 'In excels of four per pound. The market value bf car- cents ~(4# 7 bon black, as that term is herein used', shall be the actual tirket value thereof plus any bonus or pr6mlum br other thing of value paid ttierefdr, of the actual value which carbon black does rea- sonably bring In the due course of trade." The act provlaes that the tax shall'be paid on all Car- bon black produced or manufactured and the amount of the tax Is to be based upon the market value thereof' "where the mar- ket value is four cents (4d) per pound or less and three per cent (3%) of then value . ; 0 where the average market value Is In ekc'ess of four cents (4$) per pound." The provlsl6n "one“ twelfth of one cent (l/12 of I#) per pound 0 where the nmr- ket value IS fouFcents (4#) pGr pound or~less '"'Is a fixed and definite sum for all carbon black whose market value does not *2 Honorable Geo. H. Sheppard, page 2 o-1557 exceed this amount. In referring to more expensive grade of carbon black the Legltilature provided "and three peti dent .(3$) of the value of all carbon black . . .,wher& th.3 average mar- ket value Is In excess of four cents (4#) per pound".

It Is the apparent Intention of'the Legislature to tax the average price of a particular grade and hot'tc, strike an average price as between the several grades manufactured.

You are, therefore, advIsei that~ In our opinion a~mati- Ufacturer of carbbn.black should segregate his production and pay a tax upon the actual market value of each separate black produced.

Yours very truly ATTORNEYGENERAL OF TXKAS By s/C6bil C. Camniatik Cecil' Ci~ Cammack Assistant ccc:LM:wc

APPROVED~ OCT 23, 1939

s/Gerald C. Mann

ATTORNEYGENERAL OF TEXAS

Approved Opinion Committee By s/ME! Chairman