Untitled Texas Attorney General Opinion

Honorable Ernest Gulnn County Attorney El Paso County El Paso, Texas Dear Sir: Opinion No, O-3545 Re: Whether OP not a money lender's occupation tax can be collected under Subdivision 15, Article 7047, Vernon's Annotated Civil Statutes, where'one person loans money as agent of another person. This is in reply to your request for OUT"opinion con- cerning money lenders. Your letter reads in part as follows: "The Tax Assessor-Collector has asked me to advise him whether or not a State and Count,yoccu- pation tax can be collected from certain money lenders doing business within the City of El Paso, and has specifieallg asked me whether or not Sub- division 15 of Ar,ticle7047 covers such businesses, "The facts,of the case Involved are these: a person living in San Antonio, Texas, has filed, in the assumed name records of this County, as owner of a money lending outfit, and has ~aman living in El Paso looking after the business here, t,heemployee in El Paso receiving a salary for his work2 as well as a corm~fssi~r~ on the loans m&e, and loans the money advanced in the busi- ness by the man in San Antonio, If any losses are suffered in a loan, they are taken by the owner, in whose name ,thebusiness is registered, "Under these facts is the owx,errequired to pay the money lenders tax, and jiould the person employed by him in El Faso County be considered as an agent for the person advancing the money to loan? "If the owner, or the person in whose name . , Honorable Ernest Guinn, page 2 O-3545 the business is registered, lives outside of the State of Texas, would a different rule apply? We are unable to find any statute that imposes an occupation tax on money lenders in addition to the tax provided for in Subdivision 15 of Article 7047, Vernon's Annotated Re- vised Civil Statutes of Texas, This leaves us the questfon of'whether or not a tax is Imposed In the case you ask about by said Article 7047, the pertinent,parts of which read as follows: "There shall be levied on and collected from every person, ffrm, company or association of personsp pursuing any of the occupations named in the following numbered subdIvIsions of this article, an annual occupation tax, which shall be paid annually in advance except where herein other-wiseprovided, on every such occu- pation or separate establishment, as follows: 95 0 Money Lenders. -7 From everg.person, firm, assocfation of personsJ or corporation %hose business Is lending money as agent OP agent,3for any corporation, firm or association, either in this Stata or out of it an annual tax of One Hundred Fffty Dollars [$150000)(I Provfded, that ff an off'iceis maintained in more than one county, the State tax shall be payable in each county 'wherean office is main- tained; and, provfded, further, that this Tax shall not apply to persons, firms, or associa- tions who lend money as an incfdent merely to the real estate busWe%, T;OJshall said tax apply to banks, or banking Fnstitu;ions regu- iarly organized es SL.C:=~ a - o D e It will be no,tifced ,thatthe only personj firm, association, or @orporation taxes is a person, etc,, "lending money as agent or agents for'any corPo~atiOR, firm or associatfon". Under the facts that you give, there is a princ'ipaland an agent, and the agent is engaged in lending money as agent for the principal. The agent is the person in El Paso, and the principal Is the person in San Antonio, The princfpal, the San Antonio person, 13 not liable for 'thetax because the tax is only Imposed on the person lending money as afiagent. Honorable Ernest Guinn, page 3 o-3545 Is the agent, the El Paso person, in this case liable for the tax? We think he is not, because the only money lending agents liable are "agents for any corporation, firm or associa- tion". The El Paso agent is not an agent for azporation, z or association, but he Is an agent for a person. An indi- vidual person'cannot be construed to be a corporation, a firm OP an association. "Corporations are juristic persons brought into ex-' istence by the national government, by some state of the Union, or by some'foreign sovereignty", 10 Tex. Jur. 586. Certainly the principal, the San Antonio person, in this 'case Is not a corporation. We'do not believe that this San Antonio person could be construed to be a firm. In the case of Dodson v, Warren Hardware Co., (Texl Ct. Clv, App.) 162 S.W. 952, the court said: II'Afirm Is a partnership.' Black's Law Dist." We cannot construe the principal in this case to be an association, In the case of In re Lloyd3 of Texas, (Dlst. CT., N, D. Tex.) 43 Fed. (2nd) 383, the court said: "An 'association is an organized union of persons for a good purpose; a body of persons acting together for the promotion of some object of mutual interest or advantage. "It Is fundamentally a large partnership, from which It differs in that it,is not bound by the acts of the individual partners, abut only by those of its manager or trustee; and that shares in it are transferable, and t&it it is not dis- solved by the retirement, death, or bankruptcy of its individual members. Our answer to your inquiry is that no occupation tax can be collected from either the prineipal'or the agent under the facts you have given us. This answer applies whether the principal lives in Texas or outside of the State, Hbfioreble Ernest Guinn, page 4 o-3545 Yours very truly, ATTORNEY GENERAL OF TEXAS By s,kCecil C, Rotsch Cecil C. Rotsch Assfstant CCR:mp:wc s/Grover Sellers Approved Opinion Committee By s/BwB Chairman