Untitled Texas Attorney General Opinion

GENERAL Hon. Gee. H6,Sheppard Comptroller of Fublic Accounts Aw tin, Texas Dear ~78r. Sheppard8 Opinion No. 04068 Re: Under the faet6 EUhnitted, i6 the agent of an oil company a %otor oarriar" or "contract oar~ier6.liahle for th6.gross r606ipt6 tu provid6d in Article 7OGCb, R.C,S. of TEX~E? YOU present for the Opinion Of thi6 departmsolt tWo qUOEtiOX,E which appear atthe oonolusioa of your letter, whio~hwe quot6 in full a6 fOl1OlI68 “Articl6 7066b, Sec. (a) prolridEE~a6fOll~61' :-~*V,&oh individual6 partnership, company, assooiatl6a. or oorporatiofedoing :'bue%&666a6 a "mator bu6 company" as defined in Chapter'270,~AoLobBoylar Seasion of the Fortieth Legislature, as amended bythe Aot6 of 1922; -Et Called Se66ion of the For+first Legislature, Chapter 78,'or a6 saotor oarrier" or "contract oerriers as defined in Chapter 277, Acts Regular Session.of the Forty-seoond Legislature, over and by u6e of the pub110 ~highwaysof this State, ,shallmake quvterly'on the first day of January, April, July. and Ootobar of eaoh year, a report to the Comptroller, under oath, of the individual, partnership, company, assooiations~or oorporation ,' by its president treasurer; or Eeoretame, sharing th6 gro66,a6Ionntr6eOiW ed from intrastaEe business done within thie Stat6 in the payment of charges for transporting persons for oomR6ncrationand any freight 6r oo6n modify for hires or from other 6ouroe6 of rwsnu6 reoslv6d fro61intraEtat.6 busin66s within this Stat6 during the qUart6r next pmo6ding* Said i+irid- ,, ual, partnership, company, assooiation,,or corporation at the'&se Of making said reports, shall pay to the State TmaEUmr an OOOUpatiOn taX for the quarter beginning on said date aqua1 to trro,alid tW-tenth6 (2.2) per oent Of said gross reOeiptS* as shown w said report. Provided, hw6v6r. carriers of persons or property who ar6 required to pay an intangible assets tsx under the laws of this State, are hereby exempted from the pro- vision6 of this Article of this Aat.* "IIIdefining Hotor Carrierand Contraot C-Wrier6 Soor la of Art. Sllb &6+X6: ?;On,COO. !I.Sheppard, page 2 (C-6068) "*Provided, however, that the term "Motor Carrier" and the term "Ccn- traot Ca,riera as defined in t&e preceding section shall notbeheld~ ,'.~' to ineltder su&sec, (.s) of the s- se&ion 6+ &ticls ... pm&d&~?~T~.‘i ‘.- ::.,A.:?:. 'Where merely incidental to a regular, separate, fixed gnd established business, other tban a transportation business, the transportation of employees, petroleum products, and incidental supplies used or sold in connection with tilewholesale or retail sale of such petroleum products fromthe refiner or place of production or place of storage to the place of storage or place of sale and distribution to the.ulti,mate.nousumers~ in a motor vehicle owned and used exolusivaly by the marketer-or 'refiner,' or ouned in whole or in part and used exolusively by the bonarffde oon- gignee or agent of such single marketer orrefiner, as wellas :.shere merely incidental to~~isliable for,the~gross receipts tax .-> :,. as .pr,rovjded;f&&n &rt.',7;C66b.' ,.;~..aPor ~,.I ~,ol~r;co~eniezlce~~you-~ill find.attaoh&eopy of.contract form be- tween;the ;oi.l~mpanyand.:srpent~? L ..!~. :~.;...‘- r _~,y,.:,,<. ” ( Supplementing your letter you submit certain da&consisting of "~&olesale CESSION Agent's Contract," riders to Cosmission Ap@s Con~trgct,~"Consi~eg~.~Agre.ement;,'~and whqrt.1~designated 48 "Sdnedtie A," and letter attached thereto, in use by oertain oil companies coreringthe. , - - Hon. Geo. H. Sheppard, page 3 (O-6068) -.. : I <.~ operations of their distributing agents, all of which are to be considered in oonneotion with this opinion. .' , hour problem is to determine whether or not the transportation of the petroleum products~under the circumstances;;y .-,:!:,,.' ,':I... : ',: "Stat&es uhieh referto oth6r statutes and make $hemapplioable to the sub Sect of legislation are.oalled .*referencestafuteq;t and.are a familiar amd valid mode of legislation" The-general rule is that when a statute is adop ted by a,speoifio descriptive zsPerence,ltihe:,ad?~~oa takes the statute as it exists at that time;.and.,thesubsequent.~n~~tr.thereoP would not'be within the terms of the-adoptingact. " l '"w.:,: I .;': >I.~. .: .., Hnving,thas~~bon~luded,'ne.rprss to the more&f&cult question as to whether or nctdn p9v~c~ent .theLegtdIatuve @&nded.that this tax be dm- posed only -apo*,*motorcarriers" and ~~~ontrarrt~asrrie~?~~su~jeot to regula-- ssion under.~e,ie~ti~ns.~rid L%m$i tion by the ,Railroad,.C by Chr 277, Aete of the 42nd LegislatureN in,whioh the erigin&definihionssre feund" Ris Poe constrained to the view that the Legislat~.diP.not.~iotend by this referenoe to make the imposition of the tsx dependent upca whether or not such "motor carrier" and~woontraat.carrier" as therein defrnsd mere subjeat to regulation by the Railread'Cemmiasi'on~ There.is-no,Ie~s.sla~~ve~~~esaion in either a& making the one .dependentupon the other; ~otie-:is.~a-~regn~atory measure" the other a taxing measure. The reference inthe tsxingaotto the regulatory act for a definition oP,"motcr carrier" and "contraat oarrier is the same as if these definitions had-been incorporated in the taxing aot direct instead of by reference. Had this been done, obrriouslyit oould not be logically argued that sn amendment subsequently passed to the regulatory rot l&iting the preexisting definition of "motor carrier" and "oontraot carrier" would also operate to limit these same terms as defined in the taxing pot" As stated above; the.aots oover different subjeots, one regnlat%e8;:%he~.W&er taxation. They are not in pari materia" We think the real test is whether or not such "motor oarrier" or "contract carrier," p defined in the taxing act,,transports propepty for compensation or hire.over any public highway in this State where the transportation is over a highway between two or more in- corporated cities, towns, or villages" Liability for,the tax imposed by virtue of Article 7066b, eupra, must first depend upon whether or not the "motor carrier" or "conlraot oar- rier" transports for compensation or hire.. Your first question, read in connection with the preceding statement made in your opinion request, that the agent of one of the major oil companies with his ovntruak hauls petro- leum products from the oil oompaqy~s refinery to his wholesale lmlk station, and the oil company pays %&I agent for such hauls, at the same rate it would pay some other coatraor motor carrier, presupposes that such aa agent is in Hon. Gee. H. Sheppard, page S(O-6066) effect transporting for compensation or hire. Such being the oases it is our oonolusiou that the gross reoeipts received by such agent would be subject to the tax imposed by virtue of this article of the statutes. More clearly would such au agent, who hauls petroleum produots from the refinery to other parties, othorn than his om concern, andreceives oompensatiou or hire therefor, is engaged in ~U%SpQr~tiOn as a "oontraot oarrier," and the receipts received by him in such oprations would be subject to the tax im- posed by virtue of this statute. If we are correot in oux asswption that such transportation is oanpensatod for either direotly or indireotly by an adjustment ia the prioe,oP the product so transported from the refinery to the agent's bulk sales station, and where such agent transports for others for aompensation or hire both operations would be subject to the gross rsoeipts tax fixed w th2s article of the statutes. In othof words, en agent as designated in your letter, in the language of the foregoing definition of scontraot oarrier" or "motor car- rier," is a "person, firm, or corporation"; suoh agent "owns, oontrols, manages, operates or OWSM to be operated a *motor propelled vehiole used in tramporting property for compensation or biro between twc.er more ~inoorporated cities, towns, or villages," as distinguished from exclusive operation within oit+os or towns. We think such operation falls squarely vithin the purview of the statutory definition, whether treated as a smotor oarriers or sobntraot carrier,! and henoe, as above stated, is sub jeot to thetas imposed by Artiole 7066b, supra. We think it fair to say, h-er, that the question presented by you is one of first impression, and it has notboen definitely passed upon ly the courts of our State? but whatever doubt exists we feel compelled to resolve itin favor of the tax. v&y truly yours ATTOBBEIIGElWHAL OF TEXAS Py /s/L, P. Lollar L. P; LolIar Assistant APP3Ovi3DSEP 22, 1944 Approved /d Grover Sellers opinion Comaittee ATTORITEYGEiVERALOF TEXAS