“P‘HJC ATTORNEY
OP TEXAS
GERALD C. MANN Auwms ,I.TEXAS
Honorable Geo. Ii. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir: Opinion No. O-3640
Re: Gross receiptstax due'bg
Utilities Company operating in
the city of Borger, which had'
less than 10,000 inhabitants ac-
cording to preliminary census
reports published prior to Jan-
uary 1, 1941, but which has more
than lO,OOOaccordi,ng to correct-
ed census figures.
fin your letter of May 31, 1941, you advise us that the
first release by the local census supervisor (1940) gave the town
of Borger less than 10,000 popula,tion, which would class it In
the 2500 to 10,000 population bracket, but that this was correct-
ed by Washington release on January 11, 1941, by rating the city
as having a population of 10,018.
You request OUP opinion as to whether the tax levied
by Article 7060, Revised Civil Statutes, will apply to Borger as
being a city of more than 10,000 inhabitants for the quarter be-
ginning January 1, 1941, based on receipts for the quarter ending
December 31, 1940, OP will the tax under the higher bracket not
apply until the quarter beginning April 1, 1941.
Upon inquiry at your office we are advised that the
report by the Utilities company in question was not filed In the
office of the Comptroller until January 13, 1941.
Said Article 7060 reads in part as follows:
"Each indivfdual,compang, corporation or
association, owning, operatingor managing or con-
trolling any gas, electric light, electric power
or water works, or water and light plant, located
within any incorporated town or city in this State,
and used for local sale and distribution in said
town or city, and charging for such gas, electric
lights, electric power or water, shall make quarter-
ly, on the first days of January, April, July and
Hon G Geo 0 I-I. Sheppard, page 2 o-3640
October of each year, a report to the Comptroller
under oath of the individual or of the president,
treasurer or superint.andent of such company, cor-
poration or association snowing the gross amount
r,ecelved from such business done in each such in-
corporated city or ,town within this State in ths
payment of charges for such gas, electric lights,
electric power or water for the quarter next pre-
ceding D Said’individual, company, cbrporation OP
association, at the time of making said report for
any such incorporated town 01” city of twenty-five
hundred (2500) inhabitants and ltess than ten thou-
sand (10,000) inhabitants, according to the last
United States Census next preceding the filing
of said report, shall pay to the Treasurer of this
State an occupation tax for the quarter beginning
on said date equal to seven-tenths of one per cent
(0,7 of 1%) of said gross receipts, as shown by
said report; and for an incorporated town or city
of ten thousand (10,000 3 Inhabitants
‘,’ or more, ac-
cording to the last Uni’ted Stat,es Census next ~pre-
ceding the filing of said report, the sa,id indivl-
dual, company, corporation or association, at the
time of making said report, shall pay to the Trea-
surer of this State an occupation tax for the
quarter beginning on said date an amount equal to
one and three-eights per cent ‘(1 3/8$) of said
gross receipts, as shown by said report *”
The preliminary report or release was one of which the
officials and the public might ,take notice and upon which reliance
could be placed D In other words, it ‘was a sufficient Federal
Census D Hol,comb vs, Spikes, 232 S.W,891; Ervin vs. State, 44
3-W. (2d) 3800 Under Article 7060 the report of the taxpayer
was due on January 1, 1941, regardless of the fact that no
penalty would be incurred for failure to file for a period of
thirty days, See Arts” 707dt and 7575, Revised Civil Statutes,
In providing that the tax should be graduated “according to the
last United States Census next preceding the filing of said re-
port,“. we thin’k it was conC,empXted that. the report would be
filed on its due date, In our opinion the lower bracket will
apply in this instantcoo
Honorable Geo. H. Sheppard, page 3 o-3640
Yours very truly
ATTORNEYGENERALOF TEXAS
By g/Glenn R. Lewis
Glenn R. Lewis
Assistant
GRLzlh:wc
APPROVEa JVL 12, 1941
s/Grover Sellers
FIRST ASSISTANT
ATTORNEYGENEZRAL
This Opinion Considered And Approved In Limited Conference