c .
~~EA~~ORNEYGENEPLAL
OFTEXAS
AUSTXN 11. TEXAS
November 18, 1959
Honorable Robert S. Calvert Opinion No. WW-73G
Comptroller of Public Accounts
Capitol Station Re: #ether parts for an air
Austin 11, Texas conditioner, when bought
arid used for repair pur-
pose8, are taxable under
A&2;+01 of X.B. 11,
Dear Mr a Calvert : . e, 56th Leg.
By letter dated October 14, 1959, you advised:
“This Department requests the opinion of your
office on the following q.1eart1or.s:
“IS an autarwbils ir aold with an aIf COW-
tioner fn I: (and the tax Imposed by Art. 6.01 .
of X.B. ll,, 3rd C.S,, 56th Leg. on such sale is
duly paid) or IS an ai? oondltioner is sold and
installed in an automobile ,(and ths tax imposed
bye Art. 20.04 of W¶.d Aot on auoh sale 16 duly
paid) and then such air oond%tioner bscomer in
need of repair, which repair necessitates the
replacemant of some c;e-Dectlve part, is the re-
placement of such dcfscttve part In connection
with and as a necessary element of tha rffeotub-,
Alon of such repair aervics a ‘retail sale’ 86
&fined in Art. 20.01 of said Aot?
“If it 1-s your opinion that such replacement
under such clrc-~mstsn~crs is a ‘ret&l sale’
within %d.ch dcfinltlon, thsn your opinion is also
requested whether, under such clrccmstances, such
rej)~,aJ~i”~~.~>,‘
iill,ng segregates
ohargee far services and parts or includ~es Ghem in one total)
arei the subject of a “sale.” However, because of the view
taken of the second c,uestlon which you propound, this point
ir rendered moot.
Hon. Robert.. S. Calvert, Page 2 (Opinion No. WW-734) . . ..
.’
The pertinent portions of the titie to House Bill 3.1.
state that it Is “an act. . .levylng certain new and addi-+:. ::
tional taxes for support of the State Government including
excise taxes on. . .air conditioners. . .” Article 20.04 of
House Bill 11 states;
“There is hereby levied and shall be imposed
upon the sale, distribution or use of air condi-
tioners in this State an excise tax equivalent to
three per cent (3%) of the retail price for which
such air conditioners
..-- - are sold,” (Emphasis added)
Although Chapter 20 of House Bill 11, in which the
excise tax on air conditioners is set forth, specifically
taxes component parts of radios, television, sets or phono-’
graphs, there is no comparable tax levied upon component parts
of air conditioners. In view of this, It olearly appears that
it was not the legislative lnten t to levy the excise tax upon
component parts of air co,ndit.loners sold for the purpose of
repair. This conclusion 1,s fortified by, the canon of statu-
tory construction that all questions ooncerning, whether a rev-
enue measure extends to narticular objects are to t’e. strictlv
‘construed against imposition of the tax a.nd Ian favor of .the -
taxpayer. State V: San Patricia, Cannrn.g Co., 17 S.W,2d 160’
(Tex.Civ.App. 1929 t hl’atory); ,Western Pu.bl’i,c Servic,e
Co, v. Meharg, 116’T%w$3, ‘~292 &WI lb6 (lYZ( )” Southerland ”
Statutory Construction (2nd BtL), page 293, Ch. $7, Sec.. b701-
and see Attommy General’s Opirdon No, W-fi34 (September 2, ’
1959):
A minute examination eb the .definition of .“a%rcondi-
tioner” contaIned In Article’ 20.01 ,of Chapter 20 of House Bill
11, 3rd Co&, 56th Leg., verifies the foregoing conclusion.
Th,e first portion of such definition state,8 that “air’ c’ondi-
tionars” shall mean any self-contained unit, apparatus, device,
commonly knowni sold and used as an airy conditioner. This,
language merely Is declarafory~ of the intent to levy the tax
upon, div;lces,.~known, sold or used as air conditioner& The’::.
definition then proceeds to state ‘&at the term air conditi&er
“shall include’ any Instrument, ,apparatus, or mechanical con’t;ri-
‘Vance -desIgned, constructed, or assembled as part of .any s&h
self-oontained unit, apparatus, or -device to cool or ,assist in
the cooling of air In any manner.” This Language does hot
extend, f&e. ioope of the tax to inG.ude gar’t%t@dtslJ.e@ .%n air
condltlbnetis during the course of repair. Iii vlew,.bf the leg-
islativk intent ‘and the canon, of statutory: construct$on dfs-
cusse~dabore, this language c,an only be ;construed to, include
all instruinents,, ‘apparatus or contrivazxes which are designed
for use ln,,~dr’ constructed,@ assembled as part ofj an original
tqxablk :unif:,
Hon. Robert S. Calvert,’ Page 3 (Opinio:? No. W&T?&)
The second sentence of the definition of the term air
conditioner states:
II . . The term ‘air conditioner’ shall also
irklude all sub-assembl.les, devices or instru-
ments commonly used In conjunction with any
such other apparatus, device, sub-assembly or
Instrument, which when combin,ed or connected
as a functioning self-contained unit, apparatus
or deyice will constitute an air conditioner.
. . .
This language does not enlarge the scope of the tax so as to
tax other than air conditioners as that term Is defined.
Though the language used is broad, specifying sub-assemblies,
devices, etc., It is limited by the phrase “which when com-
bined or connected as a functioning self-contained unit.”
The tax is still levied only upon %he air conditioner. ObVl-
ously the language in the second sentence was included for
one purpose, i.e. to avoid fraud and evasion of the tax by
sales of separate pa.--ts of air COl?ditiOr.erS with a subsequent
assembly thereof e.s an orlginnl taxable aiz conditioning unit.
Parts sold for s;lch purpose are taxable, but the definition
of “air conditlo?er” Ij affords no basis upon which to tax re-
placement parts or par~ts Installed in a!.r conditioners during
the course of repair.1
In summary you are advIsed that a3.1 de-~ioes, assem-
blltis, sub-assemblies, etc., designed or sold for orlgklal
installation or assem3ly’ as a3 air co;:diti?::er are taxable,
but that parts sold or installed fo? the purpose or during
the course of repair are not taxable.
language is not in conflici: with i-:5& oplr.ior, expressed
aDove. It wa7 inci2ded ir? Opilslion No, WW-53G only to iiI23-
trate the proposition that a11 devlczs, sub-assemblies,
etc., sold or designed for origkal i>stal?afion or assembly’
as an air cord.itioner would be taxable.
Hon. Robert S., Calvert, Page 4 (Opinion No. ww-734j’
SUMMARY
Parts for a~r:.~coaditio~etis when ,~..
bought and used for repair purposes are
not taxable under Article 20.01 of H.B.
11, 3rd C.S., 56th Leg.
, Yours very truly,
WILL WILSON
Attorney General,
JNP:b