MP. Coke R. Stevenson,Jr. Opinion No. WW-816
Administrator
Texas Liquor Control Board Re: Whether or not Art. 667,
Austin. Texas Section 23;(d) of the Penal
Code permits the tax on
beer to be refunded when
such beer is sold to an
Individualwho has a contract
with a National Military
Establishmentto operate a
concessionwithin the enclosures
Dear Mr. Stevenson: of such establishment?
We quote from your opinion request as follows:
"Article 667, Section 23*(d), of the
Penal Code of Texas, provides, to-wit:
"'It is not Intended that the tax
levied in Section 23 of Article II of
the Texas Liquor Control Act shall be
collected on beer shipped out of this State
for consumptionoutside this State, or
sold aboard ships for ship's supplies, OP
on beer shipped to any installationof the
National Military Establishment,wherein
the State of Texas has ceded police jurls-
diction, for consumptionby military
personnel within said Installation,and the
Board shall provide forms on which Distrib-
utors and Manufacturersmay claim and obtain
exemption from the tax on such beer. If
any Distributoror Manufacturerhas paid the
tax on any beer and thereafter said beer is
shipped out of this State, for consumption
outside this State, OP sold aboard ships for
ship's supplies, OP is shipped Into any
Installationof the,NationalMilitary Estab-
lishment as referred to above, for consumption
by military personnel therein, a claim for
refund may be made at the time and in the
manner prescribed by the Board or Administrator.
So much of any funds derived hereunder as ma
be necessary, not to exceed two per cent (2$3
MP. Coke R. Stevenson, Jr., Page 2 Opinion No. WW-816
thereof, Is hereby appropriatedfor such
purpose. The Board may promulgate rules
and regulationsgenerally for the enforce-
ment of this provision.'
"This Department interpretedthe above
to mean that if the beer Is sold to,
Invoiced to, or shipped to, and paid for
by an installationof the National Military
Establishment,where police jurisdiction
has been ceded by the State, that the State
tax exemption should be allowed. On the other
hand, if this merchandise is shipped to,
invoiced to, OP paid for by a civilian con-
cessionairewho is operating for individual
profit that the State tax exemption should -
not
be allowed.
"The situation in question Is where a
concessionairewho is a civilian and is not
a memeber of any branch of the Armed Services
of the United States has been granted a con-
cession to operate a snack bar in a National
Military Establishmentwhere police jurisdiction
has been ceded by the State, The beer is served
at this snack bar located in a bowling alley.
The bowling alley is located within the area
of the National MlLltapy Establishment. The
concessionagreement provides that the con-
cessionaireshall not sell the products,
services.,and merchandise of the concession
to any person except those authorized to be
present in and utilize the facilitiesof the
bowling alley in accordancewith applicable
military regulationsor directivesnow in
effect,
"In order to answer inquiries concerning
the sale of tax free beer to an individualwho
holds a concession in a National Military
Establishment,we respectfullyrequest your
opinion as to the following questions:
"1o Whether OP not Article 667, 23*(d), of
the Penal Code permits the tax on beer to be
refunded when such beer Is sold to an individual
who has a contract with a Rational Military
Establishmentto operate a concessionwithin
the enclosures of such establfshment?
Mr, Coke R. Stevenson,Jr., Page 3 Opinion No. WW-816
c"
"2. Or, is the criterion for tax exemption
not whether the purchaser of the beer is a
civilian, but, rather, whether or not the
State of Texas has any jurisdictionover the
place where the beer is ultimately sold?
"These questions are not the subject of
any pending litigationand your opinion is
necessary in order that we may properly advise
a concessionaireoperating on a Rational
Military Establisbmentwhere the State of
Texas has ceded police jurisdiction."
A careful examinationof the terms of Art..667, Sec. 2&
(d), Tex.Pen.Code,reveals no basis for your departmental
interpretation. It is not required that the beer be sold to
a military Installation,but only that it be shipped tothe
installationfor consumptiontherein by military personnel.
This proposition is clarified somewhat by reference to the
second sentence of the questioned article, which states, in
part:
"If any Distributor or Manufacturerhas
paid the tax on any beer and thereafter said
beer. D .is shipped && any installation.. .
a claim for refund may be made."
As pointed out by Attorney General's Opinion No. W-354,
three requirementsmust be met before refunds may be made in
cases of this nature:
1. The beer must be shipped Into an installationof the
National Military Establishment;
2. police jurisdictionever the Installationin question
must have been ceded by the State of Texas; and
3. the beer must be intended forconsumption by
military personnel within the Installation.
According to the facts set forth in your letter, all three
requirementshave been met, Accordingly,refund should be made.
SUMMARY
Under the terms of Article 667, Section 234
(d), Tex.Pen.Code,the Texas Liquor Control
Board should make refund of taxes paid on beer
shipped to a civilian concessionairewithin a
Mr. Coke R. Stevenson,Jr., Page 4 Opinion No. WW-816
military installationwherein police
jurisdictionhas been ceded where such beer
is intended for consumptionby military
personnel within the installation.
Yours very truly,
WILL WILSON
Attorney General of Texas
JNP:cm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
William T. Blackburn
John Lawrence Hargrove
Robert A. Rowland
REVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore