_., ,
TEE ATTORNEYGENERAL
OF I‘EXAS
Aus-rx~ 11. TEXAS
WILJT. WILSON
A-l-l-O- OENERAI.
August 30, 1960
Honorable Robert S.
.-.Calvert
. Opinion No. WW-924
Comptroller of Puollc Accounts
Capitol Station Re: Interpretation of Art.
Austin, Texas 6.04, Title 122A,
Taxation-General, levying
a use tax upon certain
Dear Mr. Calvert: motor vehicles.
Your recent letter advises us that certain questions
have arisen concerning the interpretation of Art. 6.04 of
Title:122A, Taxation-General, and requests our opinion on
several of them. We will consider your questions in order,
the first of which is as follows:
"(1) Article 6.04 is entitled 'New Resident
Use Tax,' but there is no definition
of a 'new resident' included in this
Article. Would you please give us a
definition of 'new resident' as applied
to the provisions of the Motor Vehicle
Use Tax."
Article 6.04 reads as follows:
“When a person makes application for the
Initial certificate of title in this
State on a particular motor vehicle, he
shall pay a use tax on that motor vehicle
in the sum of Fifteen Dollars ($15.).
No certificate of title or motor vehicle
registration for such motor vehicle shall
be issued until the use tax imposed by
this Article has been paid. However, a
person Is not liable for the tax imposed
by this Article if the sales or use tax
imposed by any other provision of this
Chapter has been previously paid upon
such motor vehicle. It is the purpose
of this subsection to Impose a use tax
upon motor vehicles brought into this
State by new residents of this State.
Acts 1959, 56th Leg. 3rd C.S., p. 187,
ch. 1."
Honorable Robert S. Calvert, Page 2 (Opinion No. WW-924)
Note that the incidence of the tax Is "When a
makes application for the Initial certificate of title in t is
=I?
State. . .' The last sentence of the Article, however, makes
it clear that the terr,,
'!person"means a "new resident".
As to the definition of the term "resident", it Is
stated in 77 C.J.S., p. 306:
"Generally, the construction or
significance of the term Is governed
by the connection in which it is
used, and depends on the context,
the subject matter and the object,
purpose, or result designed to be
accomplished by its use, and its
meaning is to be determined from
the facts and circumstances taken
together in each particular case.
. . . .I,
"In order to constitute a person a
resident of a particular state, he
must intend to make, and actually
make, that state his home, although
he need not have determined to make
it always his home. Thus a person
becomes a resident of a state when he
is personally present at some place
of abode within the state, with no
present intention of definite and
early removal, and with a purpose
and intent to remain for an undeter-
mined period, not Infrequently, but
not necessarily, combined with a
design to remain permanently, and
a person continues to be a resident
of the state where he is domiciled
even though temporarily absent there-
from, but a person is not a resident
when he gives up his home and leaves
the state to return to his domicile.
For some purposes a person may be a
resident of more than one state.
"Whether a person is or is not a
resident of a particular place is a
question of law and fact, to be
determined from all the facts of
each particular case, but mere
. .
Honorable Robert S. Calvert, Page 3 (Opinion No. WW-924)
isolated
-_ facts
_ cannot be relied on
8.
wnolly to aetermlne tne question."
In Owens v. Stovall, 64 S.W.2d 360 (Tex.Civ.App. 1933,
err.ref.1. the court observed that the definition of the term.
when used-in a statute, "depends on the legislative purpose -
as well as the context, and must be construed in accordance
therewith." See Houston Printing Co. v. Tennant, 120 Tex. 539,
39 S.W.2d 1089 (1931). See also Switzerland Gen. Ins. Co.,
Ltd. v. Gulf Ins. Co., 213 S.W.2d lb1 (Tex.Civ.App. 1948, err.
dism'd) am Streib, 96 S.W.2d 992 (Tex.Civ.App. 1936)
and cakes cited there-in.
In the light of the avowed Legislative purpose,
succintly expressed In the final sentence of the Article, and
of the above authorities, we believe that a person is a 'new
resident" within the meaning of this provision when he had
abandoned his former r~esidenceand come to this State with an
Intention of becoming a resident of Texas. As indicated above,
it is not necessary that he intend to remain here permanently,
but he must be more than a mere transient. Intention may be
established from surrounding circumstances and facts, such as
the purpose for which the person is within the State, his length
of stay, and the establishment of a home here. Ordinarily,
the very act of making application for a Texas certificate of
title --- the taxable incident is a circumstance evidencing
intention to become a resident of this state. As the question
will in each Instance be one of fact, it is impossible to lay
down a more definite yardstick by which to determine taxability.
It was held in Attorney General's Opinion No. V-1405
that a soldier who is a resident of another state stationed in
Texas under military orders is not a new resident of the state
for the purpose of this tax. However, it was also pointed out
that the soldier may abandon his former residence and become
a resident of this state. Such abandonment and intention, it
was said, must be accompanied by positive acts and circumstances
indicated such intent.' We here reaffirm that opinion.
Your second question is as follows:
”(2) Other questions have arisen regarding a
new person, firm or corporation coming
into Texas for the first time on proper
application to do business. It is the
intention of this new person, firm or
corporation to permanently remain in
Texas and to engage In business in Texas
necessitating the use of automotive
Honorable Robert S. Calvert, Page 4 (Opinion No. WW-924)
equipment. This new person, firm or
corporation now owns a fleet of vehicles
located out of State and do not antici-
pate bringing all of those vehicles into
Texas at one time, but will stagger
delivery of their vehicles to the new
Texas business.
"(a) As a new resident, is the new person,
firm or corporation entitled to the
provisions of Article 6.04 allowing
for the payment of $15.00 in lieu of
other use tax for the vehicle?
"(b) .Will this new resident be allowed to
claim the provisions of Article 6.04
on all of its staggered vehicles?
“(Cl How long will this new person, firm
or corporation remain a new resident
for the provisions of this Article?
Will it be until the new person, firm
or corporation has accepted delivery
on all its vehicles to which it was the
legal owner on the date of securing
its permit to do business in Texas,
or will the date be at some other time?
“(d) If new residence terminates at some
other time other than the acceptance
of the legally owned vehicles, when
will it be?"
Clearly, the new person, firm or corporation1 is en-
titled to the provisions of Art. 6.04, as is any other "new
resident". Any other interpretation would be discriminatory.
For purposes of discussion, we will consider parts
(b), (c) and (d) of this question together. It is our opinion
that the new person, firm or corporation will be a "new resident"
under Art. 6.04 until he has accepted delivery in Texas of all
vehicles legally owned atthe time of securing the permit to do
business In this State. This conclusion is prompted by a
1
A "corporation" is considered a "person" for this purpose. See
Art. 23, Subdiv. 2, R,C.S.; 13 Am.Jur. Corporations, sec. 9 et seq.
Honorable Robert S. Calvert, Page 5 (Opinion No. WW-924)
concurrent consideration of the provisions of Art. 6.03, which
reads as follows:
“There Is hereby levied a use tax
upon every motor vehicle purchased
at retail sale outside of this State
and brought Into this State for use
upon the public highways thereof by a
resident of this State or by a person,
firm or corporation domiciled or doing
business in this State. Such tax shall
be equal to one and one-half per cent
(1.5%) of the total consideration paid
or to be paid for said vehicle at said
retail sale. The tax shall be the
obligation of and be paid by the person,
firm, or corporation operating said
motor vehicle upon the public highways
of this State. Acts 1959, 56th Leg.,
3rd C.S., p. 187, Ch. 1.”
Note that the use tax In Art. 6.03 Is levied only
when (a) a motor vehicle IS purchased at retail sale (b) out-
side of this State, and (c) brought into this State for use
upon the public highways (d) by a resident of this State or ,by
a person, firm or corporation domiciled or doing business in
this State. If the person, firm or corporation referred to in
your question already owned the vehicles at the tfme of entering
this State for the purpose of becoming domiciled or doing
business here, the taxable requisites have not occurred and no
tax accrues under Article 6.03. It must be assumed, from the
Legislative purpose evident in the two articles (I.e., to levy
a use tax upon vehicles being brought into the State for use
upon its highways), that it was not intended to allow such a
person, firm or corporation to belatedly import vehicles
completely tax-free. Therefore, such vehicles are subject to
the “New Resident Use Tax” under Art. 6.04. It is, of course,
obvious that the provisions of Art. 6.04 would not apply to
any vehicles purchased at retail by the person, firm or
corporation subsequent to the date It became a new resident or
began doing business in the State. If such sale occurred out-
side the State and the vehicle were subsequently brought into
the State for use upon the highways, a tax would accrue under
Art. 6.03. If the sale occurred within the State, then, of
course, the tax upon domestic retail sales as levied byeArt.
6.01 of Title 122A would accrue.
Honorable Robert S. Calve&, Page 6 (Opinion No. WW-924)
SUMMARY
A person Is a "new resident" under
the provisions of Art. 6.04, Title 122A,
Taxation-General, R.C.S., imposing a use tax
on certain motor vehicles, when surrounding
facts and circumstances indicate that he has
abandoned his former residence and has become
a resident of this State. A person, firm
or corporation is a "new resident" under these
provisions until and only until it has accepted
delivery in Texas of all vehicles legally owned
by it at the time it became a "new resident".
Yours very truly,
WILL WILSON
Attorney General of Texas
JRI:jip
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Ben M. Harrison
Marietta McGregor Payne
C. K. Richards
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee