                            October 27, 1988




Honorable Bob Bullock                  Opinion No. JR- 973
Comptroller of Public Accounts
L.B.J. State Office Building           Re:   Whether a non-profit
Austin, Texas 78774                    organization   that    sells
                                       taxable items must.pay the
                                       $25 annual fee for a sales
                                       tax permit   (RQ-1503)

Dear Mr.    Bullock:

     You present  the      following   information   and   ask   .the
following question:

              A non-profit museum and historical society
           has produced   and is selling a cookbook.
           While they have been properly        collecting
           sales tax on the sales of the cookbook,     they
           have asked if   the  Legislature   intended   to
           require organizations such   as  theirs to   pay
           the $25 annual sales tax permit fee.

              Since there    are   numerous   non-profit
           organizations who are involved in selling a
           very limited number of items to support their
           activities, I hereby request your official
           opinion as to whether non-profit    organiza-
           tions are required to pay the $25 annual
           sales tax fee.

     You indicate in your request letter that the non-profit
organization'properly has been collecting the sales tax on
the items that it sel1s.l You ask whether      a non-profit



      1. While section 151.310 of the Tax Code does exempt
from the reach of the tax certain qualifying     religious,
educational,   or public service organizations   when they
purchase   items that would   otherwise be taxable,,    the
                                       (Footnote Continued)




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Honorable Bob Bullock - Page 2   (JM-973)


                                                                -._



organization must pay the prescribed $25 sales tax permit
renewal fee in an instance in which it has been issued a
sales tax permit properly in the first instance and it sells
items that are taxable.   We understand you to refer to an
organization that falls within subsection (a) of section
151.310, Tax Code, subdivisions (1) or (21,    that ares .not
selling items pursuant   to an auction, as permitted       by
subsections (c) and (d).    We conclude that a non-profit
organization that sells taxable items is required to pay the
annual $25 fee for a renewal of its sales tax permit.

     The Limited Sales, Excise, and Use Tax is codified   at
chapter 151 of the Tax Code. Section 151.201 of the Tax
Code governs the issuance of sales tax permits and provides:

           (a) The comptroller    shall issue to an
        applicant who qualifies under Section 151.202
        of this code and under Subchapter G of this
        chapter    [sections   151.251   -   151.262,
        governing   sellers and retailers providing
        security for the payment of the taxes imposed
        by the chapter]      and who    pays to   the
        comptroller the permit    fee in the amount
        provided by this section a separate permit                -..
        for each place of business in this state.

            (b) The holder of a permit shall display
        it conspicuously in the place of business to
        which it applies.

           (c) A permit is valid only for the person
        and the place of business to which it applies
        and is nonassignable.

            (d) 3   e it            .          oes
        not annlv to the issuance of a temnorary
        permit under Section 151.252 of this code.
        (Emphasis added.)

     Section 151.202 of the Tax Code governs the application
for a permit; subsection (a) provides:


(Footnote Continued)
exemption  does not reach taxable     items that such
organization  itself sells, except only as provided       ty
section 151.310.   Thus, even if the organizations     about
which you inquire fell within section    151.310, that fact
would not be dispositive of your question.




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  ,

      Honorable Bob Bullock - Page 3    (JM-973)




                 A person desiring to be a seller in this
              state shall file with the comptroller    an
              application for a permit for each place of
              business.  (Emphasis added.)

      %eller" is defined for purposes    of the chapter at     section
      151.008, which provides:

                  (a) 'Seller' or 'retailer' means a person
              engaged in the business of making sales of
              taxable items of a kind the receipts from the
              sale of which are included in the measure  of
              the sales or use tax imposed by this chapter.

                 (b) 'Seller' and 'retailer   include:

                     (1) a person in the business of making
                 sales at auction of tangible personal
                 property   owned by    the person or    by
                 another:

                     (2) a nerson who makes more than two
                 sales of taxable   items durina a 12-month
.-.              period,   including sales    made in   the
                 capacity of an assignee for the benefit of
                 creditors   or receiver    or trustee   in
                 bankruptcy; and

                    (3)   a   person   regarded   by     the
                 comptroller as a seller or retailer under
                 Section 151.024 of this code.     (Emphasis
                 added.)

      We assume that the non-profit organization about which      you
      inquire falls within the underscored language of (b)(Z)     and
      is a llsellerl*for purposes of this chapter.

           Section 151.2021 of the code governs    the issuance    of
      renewal permits and provides:

                 (a) A permit issued under this subchapter
             is valid for one year from the date of
             issuance or renewal. An application for the
             renewal of a permit must be filed with the
             comptroller   not later than the 30th day
             before the expiration date. The comptroller
             on a showing of good cause by the holder may
             permit the~late renewal of a permit.




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Honorable Bob Bullock - Page 4     (JM-973)




           (b) The fee for the renewal of a Dermit is
        the same as for an initial Dermit as Drovided
        @Y Section 151.201ld) of this cod e.

            (c) For purposes of this section, a permit
        is issued on the date the permit is issued
        under Section    151.201   of this code     or
        reissued under Section 151.204, whichever   is
        later. The date a temporary permit is issued
        is not considered to be the date the permit
        is issued.

           (d) A permit in effect on the date this
        section becomes effective must be renewed
        under   this    section  before   the   first
        anniversary of the date on which the permit
        was issued that occurs after the end of the
        month in which the section becomes effective.
        If the date the permit was issued cannot be
        determined, January 1, 1988, is considered to
        be the anniversary date on which the permit
        must be renewed under this subsection.   This
        subsection    expires   January   1,    1990.
        (Emphasis, added.)                                     .-.


     There is no language in either section      151.201 or
151.2021 of the Tax Code to indicate that the legislature
intended that there be any exception to the payment of a
renewal fee for a sales tax permit. Nor is there any
indication of such legislative   intent in the legislative
history of the bill that added the fee provisions for the
first time.   See Gov't Code, 9 311.023     (Authorizing an
examination of legislative history in order to determine the
legislative intent, even in an instance in which the statute
is not ambiguous.)

     Prior to 1987, section 151.201 of the code required the
comptroller to issue without charge a sales tax permit to
each qualifying applicant for each place of business.  House
Bill No. 61, which was enacted at the Second Called Session
of the ,70th Legislature,    amended, inter alia, section
151.201 of the code and added section 151.2021. Acts   1987,
70th Lag., 2nd C-S., ch. 5, art. 1, Pt. 5, 05 1, 2, at 22.
Taken together, the amendments removed from the comptroller
the authority to issue sales tax permits without charge and
imposed a fee of $25 for the issuance of the initial permit
and a fee of $25 for each annual permit renewal. The "Bill
Analysis" prepared for the House Committee on Nays and Means
on House Bill No. 61 and for the committee substitute    for
House Bill No. 61 does not indicate any intention on the



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Honorable Bob Bullock - Page 5      (JM-973)




part of the legislature that there be any exception to the
permit renewal  fee. Indeed the "Bill Analysis" does not
mention these specific amendments. Bill Analysis, Tex. H.B.
61, 70th Leg., 2nd C.S. (1987).

     Accordingly, we conclude that the renewal fee provi-
sions should be construed as written,     and that, in an
instance in which a non-profit organization    properly   has
been issued a sales tax permit because its activities    fall
within the section 151.008 (b)(Z) definition of "seller,~~
the organization must pay the $25 renewal fee prescribed   by
section 151.2021 of the Tax Code.

                       SUMMARY

             In an instance in which a non-profit
        organization properly has been issued a sales
        tax permit because its activities fall within
        the section    151.008(b)(Z) definition    of
        "seller," the organization must pay the $25
        renewal fee prescribed by section 151.2021 of
        the Tax Code.




                                      JIM     MATTOX
                                      Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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