Untitled Texas Attorney General Opinion

Hon. T. M. Trimble First Assistant State Superintendent of Fublia Instruction Austin, Texas Dear Sirr Opinion 'No. O-5677 Re: Are State and Federal excise stamps on hand in a liquor store subject to sohool taxes? pie have your request for opinion on the above question. YOU attach to your request, and in explanation thereof, a letter to you from Mr. George M. Waddill, & 81nsss hhnager of the Amarillo Publio Schools. The pertinent parts of said letter are as followsg Vn the case of I..E. L. Sales Company, Inc. of Amarillo, Texas the tax equalization board raised the valuation of merchandise and other assets rendersd by the above Company8 and in protesting the raise of said values, L. h. L. Sales Company insists that certain items are not subject to taxation as follows: "1 . State Excise Stamps, part attached to whiskey and wine and part loose stamps. . . . . . . . .$2,164.91 '"2. Additional Federal. ::'xoiseTax. effective Nov. 1st. 1942. &lled separately from the cost of whiskey and wine and 0. P. A. did not allow a markup at that time on this tax. . . . . . . . . . . . . . . . . . $1,70:;.64 "This Company is in the wholesale liquor business and takes the position that the above two items are not subject to tax since they represent taxes paid. "Our equalization board took the position that these amounts represent money which has been used to increase the value of the merchandise on the shelf, and that it would be proper to inolude the cost of the stamps in arriving at the net oost of the arMales ori the shelf. "F'urther, that those stamps which were loose and not attached to merohandise are taxable for the reason th?t if the stamps were not on hand, the same amount would be re- presented in cash in the bank, which would be, without question, taxable." Hon. T. M. 'Irimble, page 2 O-5677 As to the powor of the school district to siibjoct.the Fedsra? excise stamps to an ad valorem tax we observe as follows: These stamps oome into existence under the terms of an act of the Congress of the IJr~;tedStates pertaining to the collection of the internal revenue taxes imposed by the Federal Government on distilled spirits. 'The internal Revenue Code of the Government of the United States sets up an exhaustive and comprehensive method for the coiieotion of taxes on distilied spirits. In said Act among other things it is provided that, "No person shall transport, possess, buy, sell or trans- fer any dis,tilied spirits, unless the immediate container thereof has affjxad thereto a stamp denoting the quantity of distilled spirits oon- tained therein and ovidwcing paymsnt of all. internal rsvonue taxes im- Es-?d on such spirits.- --_- The law further provides in substance that the stamps mentioned shall be issued by the Commissioner to each Collector, upon the requisi- tion of the Collector, and that the issue shall be in such numbers as may be necessary in the particular Collector's district, and shall be sold by the various Collectors to persons entitled thereto upon their making application for stamps and complying fully with the regulations which may be set up under this law. When any stamps so procured are destroyed by fire or water, or made useless by erroneous over-printing or cutting before they have been used, the Commissioner under re,gulations approved by the Secretary may issue new stamps in exchange for the old stamps. And in case the oxbxer of the stamps has no use for them by reason of the discontinuanoe or transfer of hj.s business, and has on hand quan.tities of the value of $5.00 or more, and presen-ts hj~s claim within one yoar aftor tho date on which the stamps wre purchased the Commissioner may refund the value of said unused stamps under regulations approved by the Secretary. 'I'he law furhter provides that every person emptying any container stamped under ths provisions of this law shall at the time of emptying such con- tainer destroy the stamp thereon. (See United States Code Annotated, Title 26, Chapter 26, Sections 2800 to 5045, inolusive) The .stamps of the Federal Government, about which you inquire, are a device used by the Federal Government in the collection of its taxes on alcoholj~c liquor. These stamps are evidence of a tax paid to the Federal Government by the taxpayer. They are an instrument, or in- strumentality, used by the Federal Government as a part of its system and method for the collection of taxes due the Government of the kilited States under the terms of i,ts internal Revenue Laws. It is u;nl~lsettled that the State of Texas, as well as its politics.1 subdivi~sions which possess taxing powsrs, do not have authority to tax an instrumentality of the United States when such tax operates as a burden upon the means or sgenoy whereby the Federal Government performs its governmental functions. -- - Hon. 2'.M. Trimble, page 3 O-5677 ‘liermFrard the Federal stamps inquired whoEt by you as f:&llicg within the ruiec last mentioned, arid you are therefore advised that the school district cannot assess, levy or colleot any tax on said stamps. (See Texas Jurjsprudence, Vol. 40, Section 11, page 24, and cases cited therein) -4s to the taxability of the liquor stamps of the State of Texas about which you inquire, you are advised as follows: School districts do not possess an inherent power to tax, as does the State. Schooi distrj.cts derive their taxing poxers solely from the statutes. {See VOL. b7, Texas Jurisprudence, page 990) The lax scripta of Texas contemplates the collection of an ad vaiorem tax form all personal property of every description whatever. This gelera rule is limited by the principle of law to the effect that ~when the State delegates to a looal unit or political. subdivision a power to levy a tax, that the power to levy said tax on property and agencies of the State is impliedly reserved from this delegation of power. The stumps of the 'State of Texas about xhich you inquire come into bnilg by virtue of th+ provisions of the Texas Liquor Lontrol Act. ?‘h!s Act is set forth in Vernon's Penal Code RS ,lrticle 666-l to 666-49, and 667-l to 667-22, il:clusivo. The Texas Liquor Control h-t is Iengthy, 3nd its reproduntiw here :w!u!d wxsime many pages. For the sake of brevity, 've omit sntt;,?g it out .In full. Xe believe it xi,11 suffice to my with reference to thjs Act that B tax is tIhere* imposed by the State of Texas upon the !'i,rst sale of a11 alcoholic spirits or liquor which is oroducod by f!?e process of distil!atinn. 'i~heAct makes thins tax pa.yable by the affixing of the stamps to the containor of liquor so taxed. i‘labornta prov;sions for the issua:!ae of theso stamps and their method of? srtle, c&c., 31-ailade by the tarms of ths ?'exss iiqwr Control .ict. (;jee?~RIOE’S ~-'o:Is~::ode, Artio: es fifi6-%l.t, 666-21‘0, sn3 666-1.5a:l) A?-, nnalLysis a:ld digest of the verio~txsprovisions of the kct ?m!ier diso,lssio,ndisclose that the stamps in ques-tion are "evidence of tho paymnt of e trx, "w&/or nn apnncy or instrlmental.ity of the !;t?te of‘ Texas usnd by :t as a means in the performance of i,ts povbmmoi?cii? functions of oollsctlng tho tax levied by the ~/Loton the first sate of alcoholic spirits and liquors above mentioned. -- 'don. T. Y. 'Crimblo, ~a@ 4 O-5677 A, the Texas Liquor Tax Stamps about which you Inquire are zr! instrurne,ntor mear;s nr agency, rutilizod by the State in th- orderly pro- cess of the aollnction of taxes imposnd by the tezms of the Texas Liquor Control Aot, it follows that when the State delegated to the school district the power to collect ad vel.oram taxes, the power to levy such a tax on said instrument:ility of the State, as is the liquor tax stamp, was implindly withheld and not granted. Be are therefore, of the opinion and so advise you that the school district cannot levy an ad valorem tax upon the State Liquor Tax strunps, about which you inquire. Ey s,/Geo. P. Ala&burn George P. R,lackbura Assistant