_.,    ,




                             TEE     ATTORNEYGENERAL
                                        OF I‘EXAS
                                         Aus-rx~   11. TEXAS

           WILJT.   WILSON
      A-l-l-O-        OENERAI.
                                          August 30, 1960

            Honorable Robert S.
                             .-.Calvert
                                  .                    Opinion No. WW-924
            Comptroller of Puollc Accounts
            Capitol Station                            Re:     Interpretation of Art.
            Austin, Texas                                      6.04, Title 122A,
                                                               Taxation-General, levying
                                                               a use tax upon certain
            Dear Mr. Calvert:                                  motor vehicles.
                      Your recent letter advises us that certain questions
            have arisen concerning the interpretation of Art. 6.04 of
            Title:122A, Taxation-General, and requests our opinion on
            several of them. We will consider your questions in order,
            the first of which is as follows:

                         "(1)      Article 6.04 is entitled 'New Resident
                                   Use Tax,' but there is no definition
                                   of a 'new resident' included in this
                                   Article. Would you please give us a
                                   definition of 'new resident' as applied
                                   to the provisions of the Motor Vehicle
                                   Use Tax."
                         Article    6.04 reads as follows:
                                   “When a person makes application for the
                                   Initial certificate of title in this
                                   State on a particular motor vehicle, he
                                   shall pay a use tax on that motor vehicle
                                   in the sum of Fifteen Dollars ($15.).
                                   No certificate of title or motor vehicle
                                   registration for such motor vehicle shall
                                   be issued until the use tax imposed by
                                   this Article has been paid. However, a
                                   person Is not liable for the tax imposed
                                   by this Article if the sales or use tax
                                   imposed by any other provision of this
                                   Chapter has been previously paid upon
                                   such motor vehicle. It is the purpose
                                   of this subsection to Impose a use tax
                                   upon motor vehicles brought into this
                                   State by new residents of this State.
                                   Acts 1959, 56th Leg. 3rd C.S., p. 187,
                                   ch. 1."
Honorable Robert S. Calvert, Page 2         (Opinion No. WW-924)


          Note that the incidence of the tax Is "When a
makes application for the Initial certificate of title in t is
                                                        =I?
State. . .' The last sentence of the Article, however, makes
it clear that the terr,,
                       '!person"means a "new resident".
            As to the definition of the term "resident", it Is
stated in   77 C.J.S., p. 306:
                  "Generally, the construction or
                  significance of the term Is governed
                  by the connection in which it is
                  used, and depends on the context,
                  the subject matter and the object,
                  purpose, or result designed to be
                  accomplished by its use, and its
                  meaning is to be determined from
                  the facts and circumstances taken
                  together in each particular case.
                   . . . .I,
                   "In order to constitute a person a
                   resident of a particular state, he
                   must intend to make, and actually
                   make, that state his home, although
                   he need not have determined to make
                   it always his home. Thus a person
                   becomes a resident of a state when he
                   is personally present at some place
                   of abode within the state, with no
                   present intention of definite and
                   early removal, and with a purpose
                   and intent to remain for an undeter-
                   mined period, not Infrequently, but
                   not necessarily, combined with a
                   design to remain permanently, and
                   a person continues to be a resident
                   of the state where he is domiciled
                   even though temporarily absent there-
                   from, but a person is not a resident
                   when he gives up his home and leaves
                   the state to return to his domicile.
                   For some purposes a person may be a
                   resident of more than one state.
                   "Whether a person is or is not a
                   resident of a particular place is a
                   question of law and fact, to be
                   determined from all the facts of
                   each particular case, but mere
.   .




        Honorable Robert S. Calvert, Page   3     (Opinion No. WW-924)


                         isolated
                            -_    facts
                                   _    cannot be relied on
                                                          8.
                         wnolly to aetermlne tne question."
                  In Owens v. Stovall, 64 S.W.2d 360 (Tex.Civ.App. 1933,
        err.ref.1. the court observed that the definition of the term.
        when used-in a statute, "depends on the legislative purpose -
        as well as the context, and must be construed in accordance
        therewith." See Houston Printing Co. v. Tennant, 120 Tex. 539,
        39 S.W.2d 1089 (1931). See also Switzerland Gen. Ins. Co.,
        Ltd. v. Gulf Ins. Co., 213 S.W.2d lb1 (Tex.Civ.App. 1948, err.
        dism'd) am            Streib, 96 S.W.2d 992 (Tex.Civ.App. 1936)
        and cakes cited there-in.
                   In the light of the avowed Legislative purpose,
        succintly expressed In the final sentence of the Article, and
        of the above authorities, we believe that a person is a 'new
        resident" within the meaning of this provision when he had
        abandoned his former r~esidenceand come to this State with an
        Intention of becoming a resident of Texas. As indicated above,
        it is not necessary that he intend to remain here permanently,
        but he must be more than a mere transient. Intention may be
        established from surrounding circumstances and facts, such as
        the purpose for which the person is within the State, his length
        of stay, and the establishment of a home here. Ordinarily,
        the very act of making application for a Texas certificate of
        title --- the taxable incident is a circumstance evidencing
        intention to become a resident of this state. As the question
        will in each Instance be one of fact, it is impossible to lay
        down a more definite yardstick by which to determine taxability.
                  It was held in Attorney General's Opinion No. V-1405
        that a soldier who is a resident of another state stationed in
        Texas under military orders is not a new resident of the state
        for the purpose of this tax. However, it was also pointed out
        that the soldier may abandon his former residence and become
        a resident of this state. Such abandonment and intention, it
        was said, must be accompanied by positive acts and circumstances
        indicated such intent.' We here reaffirm that opinion.
                  Your second question is as follows:

                  ”(2)   Other questions have arisen regarding a
                         new person, firm or corporation coming
                         into Texas for the first time on proper
                         application to do business. It is the
                         intention of this new person, firm or
                         corporation to permanently remain in
                         Texas and to engage In business in Texas
                         necessitating the use of automotive
Honorable Robert S. Calvert, Page 4     (Opinion No. WW-924)


                 equipment. This new person, firm or
                 corporation now owns a fleet of vehicles
                 located out of State and do not antici-
                 pate bringing all of those vehicles into
                 Texas at one time, but will stagger
                 delivery of their vehicles to the new
                 Texas business.
          "(a)   As a new resident, is the new person,
                 firm or corporation entitled to the
                 provisions of Article 6.04 allowing
                 for the payment of $15.00 in lieu of
                 other use tax for the vehicle?

          "(b)   .Will this new resident be allowed to
                  claim the provisions of Article 6.04
                  on all of its staggered vehicles?

          “(Cl   How long will this new person, firm
                 or corporation remain a new resident
                 for the provisions of this Article?
                 Will it be until the new person, firm
                 or corporation has accepted delivery
                 on all its vehicles to which it was the
                 legal owner on the date of securing
                 its permit to do business in Texas,
                 or will the date be at some other time?

          “(d)   If new residence terminates at some
                 other time other than the acceptance
                 of the legally owned vehicles, when
                 will it be?"
          Clearly, the new person, firm or corporation1 is en-
titled to the provisions of Art. 6.04, as is any other "new
resident". Any other interpretation would be discriminatory.
          For purposes of discussion, we will consider parts
(b), (c) and (d) of this question together. It is our opinion
that the new person, firm or corporation will be a "new resident"
under Art. 6.04 until he has accepted delivery in Texas of all
vehicles legally owned atthe time of securing the permit to do
business In this State. This conclusion is prompted by a



1
  A "corporation" is considered a "person" for this purpose. See
Art. 23, Subdiv. 2, R,C.S.; 13 Am.Jur. Corporations, sec. 9 et seq.
Honorable Robert S. Calvert, Page 5     (Opinion No. WW-924)


concurrent consideration of the provisions of Art. 6.03, which
reads as follows:
                “There Is hereby levied a use tax
                upon every motor vehicle purchased
                at retail sale outside of this State
                and brought Into this State for use
                upon the public highways thereof by a
                resident of this State or by a person,
                firm or corporation domiciled or doing
                business in this State. Such tax shall
                be equal to one and one-half per cent
                (1.5%) of the total consideration paid
                or to be paid for said vehicle at said
                retail sale. The tax shall be the
                obligation of and be paid by the person,
                firm, or corporation operating said
                motor vehicle upon the public highways
                of this State. Acts 1959, 56th Leg.,
                3rd C.S., p. 187, Ch. 1.”
          Note that the use tax In Art. 6.03 Is levied only
when (a) a motor vehicle IS purchased at retail sale (b) out-
side of this State, and (c) brought into this State for use
upon the public highways (d) by a resident of this State or ,by
a person, firm or corporation domiciled or doing business in
this State. If the person, firm or corporation referred to in
your question already owned the vehicles at the tfme of entering
this State for the purpose of becoming domiciled or doing
business here, the taxable requisites have not occurred and no
tax accrues under Article 6.03. It must be assumed, from the
Legislative purpose evident in the two articles (I.e., to levy
a use tax upon vehicles being brought into the State for use
upon its highways), that it was not intended to allow such a
person, firm or corporation to belatedly import vehicles
completely tax-free. Therefore, such vehicles are subject to
the “New Resident Use Tax” under Art. 6.04. It is, of course,
obvious that the provisions of Art. 6.04 would not apply to
any vehicles purchased at retail by the person, firm or
corporation subsequent to the date It became a new resident or
began doing business in the State. If such sale occurred out-
side the State and the vehicle were subsequently brought into
the State for use upon the highways, a tax would accrue under
Art. 6.03. If the sale occurred within the State, then, of
course, the tax upon domestic retail sales as levied byeArt.
6.01 of Title 122A would accrue.
Honorable Robert S. Calve&,    Page   6     (Opinion No. WW-924)




                          SUMMARY


                   A person Is a "new resident" under
            the provisions of Art. 6.04, Title 122A,
            Taxation-General, R.C.S., imposing a use tax
            on certain motor vehicles, when surrounding
            facts and circumstances indicate that he has
            abandoned his former residence and has become
            a resident of this State. A person, firm
            or corporation is a "new resident" under these
            provisions until and only until it has accepted
            delivery in Texas of all vehicles legally owned
            by it at the time it became a "new resident".

                                      Yours very truly,
                                      WILL WILSON
                                      Attorney General of Texas




JRI:jip
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Ben M. Harrison
Marietta McGregor Payne
C. K. Richards
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee
