AUSTIN ~~.TExarn
GWALD C. MANN
*TrORNEYcaENERAx.
Hon. Bert Ford, Administrator
Texas Liquor Control Board
Austin, Texas
Dear Sir:
Opinion No. O-299
Re: A refund or deduction for the
amount of tax paid on broken
bottles, which contain beer, to
brewery.
Your request for an opinion on the question as is here-
in stated has been received by this office.
Yours letter reads, in part, as follows:
"I would appreciate an interpretation as to
whether or not bottles of beer that are broken
upon which the tax has been paid or, bottles of
beer that are broken upon which the tax has not
been paid and are stored in the brewery, shall
entitle the brewery to a refund or a deduction
for the amount of tax paid on those broken
bottles which contain beer."
Article 667-23 of the Penal Code reads as follows:
"(a) There is hereby levied and assessed
a tax at the rate of One Dollar and Twenty-four
Cents ($1.24) per barrel on all beer sold, stored,
distributed, transported, or held for the purpose
of sale in this State whether namufactured in or
imported fnto this State. Bald tax shall be paid
and evidenced by placing stamps, which the State
Treasurer is herein authorized to provlde in the
denominations required, on each origlnal package
as defined in this Article; provided, further,
that at the time said stamp is affixed the person
affixing the stamp shall with Indelible Ink or
stamp cancel the same by placing the date and the
licensee's full name or initials upon said
revenue stamp.
Hon. Bert Ford,'Adminlstrator, page 2 0 -299
"(b) It is the purpose and intent of this
Act to require the tax to be paid and the stamp
evidencing same to be affixed on the first sale,
distribution, storage, or transportation and at
the source, to the end that it will preclude any
person evading the payment of this tax. Any per-
son in poaseaslon of beer that has not been
stamped in accordance with the provisions hereof
shall be held to be In violation of this Article
and liable for the taxes hereln provided and the
penalties for such violation.
"(c) On beer imported into this State the
duty of payment of the tax and affixing and
cancelling the stamp as required herein shall
rest primarily upon the importer, and it Is here-
by declared to be unlawful to import beer into
this State unless and until said tax has first
been paid and the stamp evidencing such payment
has been first affixed and cancelled as required
by this Act. It is provided, however, that a
holder of a manufacturer's license who imports
beer into this State for rebottling purposes
shall not be required to affix the State tax
stamps to the container In which he receives
the same, and that the same may be transported,
delivered and stored by him without the State
tax stamps being affixed to the containers there-
of, but in all instances where beer is imported
into this State for rebottllng purposes the im-
porter thereof shall be required by rule and
regulation of the Board to make and keep such
records and submit such reports as amy be re-
quired, to the end that it will preclude any
person from evading the payment of the proper
tax.
"(d) On beer manufactured In this State
the duty of paying the tax and affixing and
cancelling the stamo as requFred herein shall
rest primarily upon the manufacturer, and it-is
hereby declared to be unlawful for any manufacturer
to transport any beer or to deliver to any person
any beer to be transported away from the brewery
of said manufacturer unless and until tax has
first been paid and the tax stamp evidencing such
payment has been first affixed and cancelled as
required by this Act; provided, however, that no
person holding a Manufacturer's License Ln this
State shall be required to affix stamps on any
Hon. Bert Ford, Administrator, page 3 o-299
containers of beer stored in the brewery where
same is brewed OP being transported therefrom
to a point outside of this State.'l
"(e) Tax.stamp of proper denomination shall
be placed on each original package as herein
defined upon which the stamp is required to be
affixed, in such a way that the original package
cannot be conveniently and practically opened
without mut-ilatingor defacing said stamp;
provided, however, that as to packages where
thisrequirement is in the judgment of the Board
impractical the Board shall have authority by
regulation to require the affixing of the stamp
in any manner it may deem necessary for the pro-
tection of the revenue due to the State.
"(f) It shall be unlawful to transport to
destinations in this State any beer upon which
tax has not been paid and such payment evidenced
by stamps affixed and cancelled as required by
law.
"(g) If any person has paid the tax on any
beer and affixed tax stamps to the containers
thereof and thereafter said beer is shipped out of
Texas for consumption, a claim for refund may be
made upon paying a fee of Five Dollars ($5) to the
Board at.the time and in the manner prescribed by
the Board or Administrator. So much of any funds
derived hereunder as may be necessary, not to
exceed two (2) per cent thereof, is hereby appro-
prLated for such purpose. The Board may pro-
mulgate rules and regulations generally for the
enforcement of this provision.
n(h) No bottled beer shall be stored.in
this State except it be in a container or
original package bearing the proper tax stamp,
unless the same is exposed for sale by a retailer
or is being cooled for sale by a retailer, ex-
cept when the same is legally in the possession
of the ultimate consumer,
"(i) Except as may be otherwise provided
by rule and regulation of the Board no person
shall be authorized to purchase any beer tax
stamps herein provided unless he is a holder of
a Manufacturer's or Distributor's License; pro-
vLded however, that the holder of a Manufacturer's
Hon. Bert Ford, Administrator, page 4 o-299
or Distributor's License may designate as his agent
for the purchase of stamps any manufacturer or
wholesaler located outside the State whose products
are imported into this State by the holder of such
license; and the State Treasurer shall make no sale
of beer tax stamps to any person not authorized to
purchase same.
"(j) The Board shall from time to time inspect
the records of manufacturers, importers, or dis-
tributors to ascertain whether there has occurred any
evasion of the tax imposed by this Article upon beer
sold, stored, distributed, transported, or held for
the purpose of sale in this State. It la hereby de-
clared to be the law that as to all beer sold,
stored, distributed, transported or held for the pur-
pose of sale in this State and for which the tax has
not been paid and evidenced aa required by law prior
to the first such act, the tax hereby imposed shall
be double the amount of tax required to be paid upon
beer that is stamped before Its first sale, storage,
distribution, or transportation in this State; and
any person who shall sell, store distribute, trans-
port, or hold for purpose of sale any unstamped beer
shall be in violation of the law and may be held
liable for the tax that may be found to be due to
the State. Any receipts or sales or record of receipt
or sales of beer by any person In quantity exceeding
the amount of beer for which tax stamps have been
purchased by such person from the Board shall be
prima facie evidence of the sale of beer without
payment of the tax thereon.
"(k) It'shall be unlawful for any person to
open any container of beer having a stamp thereon
without then and there mutilating or otherwise de-
,faclngsuch stamp so that it cannot be again used;
and
"(1) It shall be a violation of law for any
person to attach to any container of beer or to
possess any stamp that has been theretofore attached
to a different container, or to use for the packing
of beer, or to possess for such purpose any con-
tainer bearing a stamp that has theretofore been
used for the delivery of beer unless the stamp re-
quired by.law to cover the previous sale or delivery
has thereafter been defaced, mutilated, or removed.
Hon. Bert Ford, Administrator, page 5 o-299
“(m) Any payment of taxes upon beer found
to have been sold, stored, or transported before
payment thereof, voluntarily or as a result of
seizure and sale shall not excuse any person from
penalites provided for failure to pay taxes and
evidenced such payment by the application of
stamps as required in this Article.”
Section (b) of Article 667-23, supra, specifically
provides that -
“It is the purpose and intent of this Act
to require the tax to be paid and the stamp
evidencing same to be affixed on the first sale,
distribution, storage, or transportation and at
the source to the end that it will preclude any
person evading the payment of this tax. * * * *’
Section (e) of the above quoted.Statute, provides that
the -
“Tax Stamp of proper denomination shall be
placed on each original package as herein defined
upon which the stamp is required to be affixed.
* * * Y”
Section (h) of Article 667-23, supra, provides that -
“No bottled beer shall be stored in this
State except it be in a container or original
package bearing the proper tax stamp, unless the
same is exposed for sale by a retailer or is
being cooled ‘for sale by a retailer, except when
the same Is legally In t.hepossession of the
ultimate consumer.
After a careful search of the statutes, we do not’find
any statutory provision which provides that the brewery shall be
entitled to a refund or a deduction for the amount of tax paid
on broken bottles, which contain beer, when such bottles were
broken while in the possession of the brewery.
In view of the foregoing statutes you are respectfully
advised that it Is the opinion of this department that a brewery
is not entitled to a refund or a deduction for the amount of tax
paid on broken bottles, which contain beer, upon which the tax
has been paid or bottles of beer that are broken upon which the
tax has not been paid and are stored in the brewery.
Hon. Bert Ford, Administrator, page 6 o-299
Trusting that the foregoing answers your inquiry, we
remain
Yours very truly,
ATTORNEY GENWAL OF TEXAS
By s/Ardell Williams
Ardell Williams
Assistant
AW/omb/wc
Approved Opinion Committee By s/RWF Chairman
APPROVED JUL 6, 1939
s/W.F. Moore
FIRST ASSISTANT
ATTORNEY GENERAL