Untitled Texas Attorney General Opinion

OF TEXAS ‘1 OFFICE OF THE ATTORNEY AUSTIN GENERAL a- 0. lnrnn Ano1”W OplruL Honorable George H. Sheppard Comptrolleror Publio Aooounts Austin, Texae Dear Sir: This ir in anawe 1942, In whloh you may o example I aubmlt the lbllowing. n A maintain8 Its orfloo in an (the lnoorporatedtown 0s~ be 3,000 Inhabitants). It operate8 noorporatedtown or lee8 than and also operatea a store in an inoorporated tom or less than 3,000. Is euoh utility oorporatfon exempt rrom paying the ohaln atore tax on the StQrOa it operates in these towne?" Honorable George Ii.Fhfhepprrd, Page 2 It is our opinion that CorporationA:,wouldbe sub- jeot to the Chain ?tore Tax on all lte etoree located in unincorporatedtowus, irreapeotireof the population under Sea. 9, Art. 11116, Texas Penal Code, (Sec. 1, Art. 19, Aote 19&l, 47th Leg., H. B. MO. 8). Article 7060, R. '. S. of Texas, a8 amended by Art- icle V of El.9. Zo. 8, Acts Re$. SM. or 47th Leg., requires quarterly reports frox# "Caoh lndirldual, oompany, corporation or aasooletlon,owning, operating,managlng or oontrolllng any gaa, electrlo light, eleotrio power, or water worka, or water and light plant, located dthin an7 lncoruoratedtown or olty in this State, and used for local sale and dletrlbu- tlon In said town or city and oherglng for suoh gas, eleotrlo lighta, eta." showfng the gross amount reoelvsd for suoh businees done in each such incorporated tom or oltp, and providing for the payment or an occupation tax baaed on 8uoh groaa reoelpte. No provision le made for suoh report and no suoh tax IS levied on auoh bueineasee conduoted In unln- corporated towna. The laet paragraph st said Art. 7060 reads am roiiowat mAad provided further that :atllitieapaying an oooupetiontax under thie ATMole shall not hereafter be required to pay the lloense fee lm- poeed in Artlolr 50, House Bill BG. 18, Chapter 400, Aots or Forty-fourthLegislature, ror the privilege or selling gas and lleotrio 8ppllanoea end part8 ior the repair6 thereof, in town8 of three thousand (3,000)or leaa in pcipulatlon ae- cording to the next preoeding Federal Csneua. Aa amended Acte 19Al, 47th Leg., H. B. #8, Art. v, 8 1." It will be noted that those utilities pefing an oooupation tax under this Art.1410shall not be required to pay the llcenee fee imposed in Art. 5a, B. B. i%. 18, Chap. l&O, Aots 44th Leg., ior the privilege of selllng gae and eleotrlc appliances and parts for the repair thereof, in towns or 3,000 or leas population acaording to the last Fed- eral Gamma. Konorable George Ii.Sheppard, Page 3 Seotlon 5, Art. 11116, Texas Penal Code, as amended Acts 194l, 47th Lag., H. EL NO. 8, Art. XIX, Sea. 1, epeol- floallp exampte those businesses now paplng an occupationtex measured by groea raoalpts, It la our opinion, a8 heretofore expressed, (Opinion Ro. O-2507) that eeld Seatlone 5 and 5a, Art. lllld, Penal Coda of Texea, tax dlrrerent typea or stores, and that Sea- tlon 5a was included by the Leglaleture In order to aubjeot to the Chain Store Tax certeln stores not tax&d wnder the provtslona 0r Seation 5. It may be pointed oukthat since no oooupatlontax baaed on groae receipts has ever been levied or paid on store@ ior the prlyllege of selling gaa and electric appllanoeasad parts for the repair thereor In unincorporatedtowns, such stores have never been axmpt from the payment of the tax un- der said Section 5. Thla being true, we reach the conclusion that the provlalona or Artlole 7060 do not In an;plaa affeot the trx 12ablllt~or auoh storea ior the reason that they have never been eubjeot to the payrnentof the Ohaia Stora Tax under Sao- tlon 5s therein referredbut ara now, and have been, llna a to, of the Aot in 1935 aubjeot to ths said tar un- the enaotllunt der 580. 5. We, therefore,hold that utllltlea even though pay- ing gross raoalpta tar under Artlole 7060 should be required to par a Ghaln Store Fax iOr the privilege of operating stores selling gee and lleotrlo appllanoea and parts for the repair thereof In unlnaorporat*dtownr under the prcvialona of Peg. 5, Art. 11116, Penal Coda, as amended Aots 1941, 47th Legia- lature, A. B. No. 6, Axt. XIX, Fee. 1. We rurther hold that all atone o? CorporationA locatad in Incorporatedtome of more than 3,000 population aooordlng to the next preoedlng Federal 00~8~s are aubjaot to the Chsin Store Tax aa provided by Art. 5a, Hous? Bill Eo. 1.8,Chapter 400, Aots or 44th Lagielatuse, for the prirl- lage of selling gas and eleotrlo appllenoea and part8 for the repair thereor. The terms or ssld Sao. 58 apaoifieell~ tax such stores and they are not within the exemptloupro- vided by Art. 7060. Honorable Oeo~ge k i?heppard,Page k Ztores of this oharaater, paying owupatlon tax me08~ea by groea raoeipte and loostea in inoorporataatowns of 3,000 or lees population aocording to euoh Census are exempt from the payment of the Chain l-toreTIIXunder the provirialone of said Art. 7060. This appears to be the only exemption provided by the quoted paragraph oi that Artiole. Very truly yours