Untitled Texas Attorney General Opinion

THEA~O~~EY GENERAL OFTEXAS GERALD Co MANN AUSTXN 1,. TEXCAS 5t?zzaz Honorable George ?I. Sheppard Comptroller of Public Accounts Austin, Texas Dear Sir: Opinion No. O-3637 Re: Authority of Comptroller~to permit a transfer of the chain store license Issued to a utility store operating in a town of less thank three thousand '(3,000) Ynhabltants to a store In a citg'having a population of more than three thousand (3,000), in vlew~of the amendment to Article 7060, Revised Civil Statutes. From your letter of June 4, 1941, and attached data we gather the following facts: 'A certain utilities company operating stores in several towns of less than three thousand (3,000), Inhabitants, timely paid the fees fixed In Section 5a of Article lllld, Vernon's Annotated Penal Code, obta'lnlnglicenses to operate during the year 1941 In said respective towns. Article 7060, Revised Civil Statutes levies a gross receipts tax, or occupation tax measured by gross receipts, on certain utlll- ties. That statute was amended by Article 5 In House Bill No. 8, Forty-seventh Legislature, effe!ctiveMay 1 of this year. Said Article 5 of House Bill 8 contains~the following paragraph: "And provided further that utllltles paging an occupation tax under this Artlcle'shall not here- after be required to pay the license fee imposed In Article 5a, House Bill No. 18, Chapter 400, Acts of Fortg;fourth Legislature, for the privilege of sell- lng~gas and electric appliances and parts for the .repalrs thereof,'Fn tolrnsof three thousand (3,000) or less in population according to the next preced- ing Federal Census." Said utllitles company pays the tax levied by sald~ Artiicle 7060 on the stores thus operated In said towns of less Honorable George H. Sheppard, page 2 o-3637 than three thousand (3,000) population. Hence as to suctistores the utilities company may not hereafter be required to p&g the license fee fijiediLnSectlon 5 of said Article 11116; Said utilities company has requested you~'topermjt the transfer of the licenses thus Issued for the year 1941 to-the storks oper- &tlngTn towns of less thiuithree thtius&na'(3',000) Inhabitants to.stores In cl'tles~of popUl.%tlWtiore'thafi'three thousariV (~3,000).The tax on such-'itores'~Qas.'paldprior to the enact-' i&&t of H&se Bill No; '8 and we are-'adviaed,thatthe stdr8s'ln tieidtowns of less than three thousand~(3,,000)~'inhabit~nts'wlll contlinieto opepate. You request our opinion-'ahtb whether the Comptroller Is authorized to permit such a transfer. .,, -,T'he net result of allowing sucK'a tiiansferWould be to refund a'part of the 1941 chain store tax paid bn'these" stoi%s operating in towns of less than three thbutiana(3;OOO) inhtibltants. The statuttishowhere provide for such~a transfer dr refund. The quoted part o'fArticle 5, R.B. 8’;merely ~PO- vides that the utilities company"""shallnot hereafter be r6;' qulred to pay" the.'chainstore tax~bn these particular stbi-es. W&do not believe an lhtentlon to make's r&fund, even"thotigh iiiddirectlg', can"b6'gleaned from this language. The tax for'1941 had been paid, a'fact known tb the Legislature. Had it been -'. ileslredto make a refund, 6r allow aiiypabt of such paymgnts as a'credlt upon other taxes accruing, apt language could have been found-easily to evidence such Intent. Our answer to your ques- tion Is a negatlve one. . Yours very truly ATTORNEY GENERAL OF TEXAS By s/Glenn R. Lewis Glenn R. Lewis Assistant GRL:db:wc APPROVED JUN 14, 1941 s/Grover Sellers FIRST ASSISTANT ATTORNEX GENERAL Approved Opinion Committee By s/BWB Chairman