f .
Honorable Ernest Guinn
County Attorney
El Paso County
El Paso, Texas
Dear Sir: Opinion No. O-3739
Re: Construction of “resident
of this State” in motor vehi-
cle use tax; Article VI, House
Bill No. 8, Acts 47th Legisla-
ture, Regular Session.
We are in receipt of your request for an opinion by this department,
in which you submit the following question:
*An employe~e of the United States Border Patrol was trans-
ferred to Texas in May, 1940. He has lived in Kansas eleven
years, and for the past three years has owned his own home
there, which he still owns but is now occupied by a tenant. He
has voted in Kansas every year for the last. eleven years, except
last year, andsays- that he would have voted there last year but
for the fact that he was out of the State on election day. He is
now occupying a rented house i,n El Paso. Employees in this
service are subject to transfer at any time and are in fact fre-
quently transferred, it being very unnaUn1 for an employee to
remain in the same place more than about two years. This
particular employee was to have been transferred to New Mex-
ico within the last few days, but the transfer was canceled at
the last moment.
“While on a trip to Kansas recently this man bought a used
automobile, on which he paid the Kansas sales tax. He drove the
automobile to El Paso and upon being notified that his transfer
to New Mexico was canceled he applied for Texas registration of
the automobile.
“Is he a ‘resident’ of Texas within the meaning of the recent
statute imposing a use tax upon anautomobile brought into this
State by a ‘resident’ ?* ‘\_
Honorable Ernest Guinn, Page 2, O-3739
Section 1 of Article VI, House Bill No. 8, Acts 47th Legisla-
ture, Regular Session, levi.es a tax upon every retail sale of every motor ve-
hicle sold in this State, at the rate of 1 percent of the total consideration paid
or to be paid to the seller by the buyer.
Section 2 of said Act levies a tax as follows:
“The,re is hereby levied a use tax upon every motor vehicle
purchased at retail sa1.e outside of this State and brought into this
State for use upon the public highways thereof by a resident of
this State or by firms or corporations domiciled or doing bi$g’i-
ness in this State. Such tax shall be equal to one (1) per cent of
the total consideration paid or to be paid for said vehicle at said
retail sale. The tax shall be the obl.igation of and be paid by the
person, firm, or corporation operatkng said motor vehicle upon
the public highways of thi.s State.” (Underscoring ours)
Section 5 provides:
“The taxes levied in thi.s Article shall be collected by the
Assessor and Collector of Taxes of the county in which any such
motor vehicle is first registered or first transferred after such
a sale; the Tax Collector shall refuse to accept for registration
or for transfer any motor vehicle mitt1 the tax thereon is paid.
“When a tax beco%mes du,e on a motor vehicle purchased out-
side of this State and brought i.nto this State for use upon the high-
ways, the person, firm, or corporati.on operating said motor vehi-
cle upon the public highways of thi.s State shall pay the tax imposed
by Section 2 to the Tax Collector of the county in which such motor
vehicle is to be registered. The tax shall be paid at the time appli-
cation is made for regi.stration of said motor vehicl.e, and the Tax
Collector shall refuse to issue the registration l.i.cense until the
tax is paid.‘”
In 54 C. J. § 1, pa 712, it i.s stated:
*Although there are many definiti,ons to be found i.n the books,
.it is not easy to give a satisfactory definition of this term, for it is
flexible, somewhat ambiguous word, used in many and various senses,
with the sense in which it should be used controlled by reference to
the object, thus having different meanings according to the context,
or the subject matter under discussion. It has a great variety of
Honorable Ernest Guinn, Page 3, O-3739
meanings. It is difficult to give an exact definition of what is
meant by ‘resident’ as use~d in particular statutes, for, although
often construed by the courts, the te,rm has no technical mtan-
ing, but is differently construed in courts of justice, according
to the purposes for which inquiry is made into the meaning of
the term. The construction is generally governed by the con-
nection in which the word is used, and the meaning is to be de-
termined from the facts and circumstances taken together in
each particular case.”
Sometimes the term residence is used synonymous with domi-
cile and a “resident” may be one having his domicile in a particular place.
At other times the term has reference to a person living in a particular local-
ity without reference to his domicile. The difference has been expressed as
one of “actual residence” and “legal residence” and it has been said that a per-
son may have his legal residence in one place and his actual residence in an-
other. 15 Tex. Jur. p. 710, 63; O’Rourke v. Fort Worth Star Telegram, 19 S. W.
(2d) 136; A. H. Belo Corporation v. Granberry, 9 S. W. (2d) 443; Taylor v.
Wilson, 93 S. W. 109.
Use and other compensating taxes are fr.equently enacted along
with retail sales taxes as supplementary or complementary thereto. Aside
from their obvious revenue producing object they are also designed to prevent
sales tax avoidance through outside purchas,es, and to place local business on
even terms with interstate commerce and prevent discrimination against local
merchants in favor of competitive merchants in other states. Pacific Telephone
& Telegraph Company v. Henneford, (Sup. Ct. Wash. 1938), 81 Pac. (2d) 786,
790; Continental Supply Company v. People, (Sup. Ct. Wyo. 1939) 88 Pac. (2d)
488, 490, Fifteenth Street Investment Company v. People, (Sup. Ct. Colo. 1938)
81 Pac. (2d) 764, 766; Henneford v. Silas Mason Co., Inc., 300 U. S. 577, 57
S. Ct. 524, 81 L. ed. 814. It would seem to be apparent from the statute itself
that the use tax levied by House Bill 8 is closely related to the retail sales tax
on motor vehicles and has for its purposes those considerations herein above
pointed out.
After careful consideration of the provisions of the above statute
and the purposes for which it was enacted, we are of the opinion that the Legis-
lature used the phrase “resident of this State” in the sense of a person’s ‘actual
residence,” and not in the sense of his domicile or “legal residence.” Such con-
struction would seem to be more in harmony with the apparent purposes of the
Legislature in enacting the use tax, and would tax those whose use of the high-
ways might be expected to be more or less continuous.
-
Honorable Ernest Guinn, Page 4, O-3739
Having determined the meaning of the term “resident” as used
in the statute, its application to particular individuals becomes a question of
fact to be determined from al1 the facts and circumstances in each particular
case. This department is not authorized to pass upon questions of fact, how-
ever, we w,ould point out that under the facts you outline, this individual has
lived in Texas since May, 1940, and while he may maintain his domicile in .” :
Kansas and may in the future be transferred from Texas, from all that appears
in your letter it is his present purpose to remain here indefinitely,
Assuming that yo,ur letter presents all the facts, we are of the
opinion that this individual is a resident of Texas within the meaning of Article
VI, H. B. No. 8, Acts 47th Leg., Regular Session.
Yours very truly
,ATTORNEY GENERAL OF TEXAS
Cecil C. Cammack
Assistant
ATTORNEY GENERAL
CCC:mp APPROVED
OPINION
Chairman
Untitled Texas Attorney General Opinion
Combined Opinion