                        July 21, 1958

Hon. Coke R. Stevenson, Jr.       Opinion No. WW-483
Administrator
Texas Liquor Control Board        Re:   The authority of
1300 Guadalupe Street                   the Comptroller
P. 0. Box 56                            of Public Accounts
Austin 61, Texas                        to refund or give
                                        credit on future
                                        tax payments for
                                        overpayment of taxes
                                        on alcoholic beverages
                                        damaged or otherwise
                                        unfit for human con-
Dear Mr. Stevenson:                     sumptlon.
    We quote from your opinion request as follows:
         "From time to time this department receives
    requests for refunds of State taxes paid on al-
    coholic beverages:that are for one reason or
    another not consumed in the State of Texas. On
    frequent occasions, alcoholic beverages are
    damaged or become so old that they are unfit
    for human consumption. . . ."
         II
          . . .For a number of years the Board has
    allowed such refunds to Individuals and concerns
    who are no longer doing business, and In addition
    have allowed credits on future tax payments to
    those Individuals and concerns doing business In
    this state at the time of the refund request.
         11
          . . .
          "Recently the question of allowing refunds or
     credits on future tax payments for overpayment of
     taxes and alcoholic beverages damaged or otherwise
     unfit for human consumption has been questioned by
     officials of the State Comptrollers Department. It
     is for this reason we respectfully request your
     valuable opinion as to the Board's authority In
     approving such requests for refunds and credits
     of State taxes paid."
Hon. Coke R. Stevenson, Jr., page 2,   Opinion No. Ww-483


     By alcoholic beverages, we assume that you refer to
those beverages listed and defined In both Chapter I and
Chapter II of The Texas Liquor Control Act. Articles 666-l
et seq., V.A.C.S. Therefore, we quote the provisions ap-
plicable to both:
         "Art. 666-21. There is hereby levied and im-
    posed on the first sale in addlti n to the other
                                     P the following:
    fees and taxes levied by this Act.
          11
           . . .
         "The term 'first sale' as used in Article I
    of this Act shall mean and include the first sale,
    possession, distribution, or use in this State of
    any and all liquor refined, blended, manufactured,
    imported into, or in any other manner produced or
    acquired, possessed, or brought into this State.
         II
          . . .
         11
          . . . Any person authorized to export liquor
    from this State having In his possession any liquor
    intended for shipment to any place without the State,
    shall keep such liquors in a separate compartment
    from that of liquors Intended for sale within the
    State so that the same may be easily inspected and
    shall attach to each such package of liquor so ln-
    tended for shipment without the State a stamp of
    the kind and character that shall be required by
    proper rule or regulation denoting that the same
    is not intended for sale within the State. When
    such liquors are so kept and so stamped no tax on
    account thereof shall be charged. . . .
         II
          . . .
          "Art. 666-213. In addition to all other fees
     and taxes, there Is hereby levied and imposed on
     the first sale the following:
          11
           . . .
         "The term 'first sale' as used in this section
    shall mean and include the first sale, possession,
    distribution, or use in this State of any and all
    liquor refined, blended, manufactured, imported into,
    or in any other manner produced or acquired, possessed,
    or broughtinto this State; but shall not include sales
Hon. Coke R. Stevenson, Jr., page 3,   Opinion No. WW-483


    of liquor by permittees authorized to sell at retail
    only where such sales are made from stocks on hand and
    in possession of such permittee on the effective date
    of this section.


         "Art. 667-23. There is hereby levied and
    assessed a tax at the rate of Four Dollara and
    Thirty Cents ($4.30) per barrel on the first
    sale of all beer manufactured in Texas and on
    the importation of all beer imported into this
    State. As amended Acts 1954, 53rd Leg., 1st
    C.S.) p. 3, ch. 2, Art. IV, g 1; Acts 1955, 54th
    Leg., p. 1080, ch. 404, Art. III, g 1.
          "Art. 667-23+(a). The tax levied In Sec-
     tier 23 of Article II of the Texas Liquor Control
     Act is levied only on Its first sale In Texas or
     only on Its Importation Into Texas, whichever
     shall first occur.
          II
           . . .
         "(d). It is not Intended that the tax
    levied In Section 23 of Article II of the Texas
    Liquor Control Act shall be collected on beer
    shipped out of this State for consumption outside
    this State, or sold aboard ships for ship's supplies,
    or on beer.shipped to any installation of the
    National Military Establishment, wherein the State
    of Texas has ceded police jurisdiction, for con-
    sumption by military personnel within said lnstal-
    lation, and the Board shall provide forms on which
    Distributors and Manufacturers may claim and obtain
    exemption from the tax on such beer. If any
    Distributor or Manufacturer has paid the tax on
    any beer and thereafter said beer is shipped out
    of this State, for consumption outside this State,
    or sold aboard ships for ship's supplies, or is
    shipped into any installation of the National
    Military Establishment as referred to above, for
    consumption by military personnel therein, a claim
    for refund may be made at the time and in the manner
    prescribed by the Board or Administrator. So much
    of any funds derived hereunder as may be necessary,
    not to exceed two per cent (2$) thereof, is hereby
    appropriated for such purpose. The Board may promul-
    gate rules and regulations generally for the enforce-
    ment of this provision.
Hon. Coke R. Stevenson, Jr., page 4,   Opinion No. WW-483


          "Art. 667~23a. In addition to all other taxes,
     there Is hereby levied and assessed a tax at the
     rate of ten per cent (l@) of One Dollar.and twenty-
     four cents ($1.24) per barrel on the first sale of
     all beer manufactured in Texas and on the importation
     of all beer imported into this State.
          "The tax levied herein is levied only on Its
     first sale in Texas or only on Its importation Into
     Texas, whichever shall first occur.
          II
           . . .
         "On beer manufactured In this State the duty of
    paying the tax shall rest primarily upon the manu-
    facturer, and said tax shall become due and payable
    on the fifteenth day of the month following that
    month in which the first sale of said beer was made
    in this State."
     The transaction upon which the above-described tax
is levied is clearly set forth in the foregoing statutes.
The term "first sale" has been given a definite fixed mean-
ing. The one who first comes into possession of alcoholic
beverages within this state, by whatever means the same is
brought about, must stamp such beverages before placing same
in storage or before again selling or disposing of the same
in any manner. Attorney General's Opinion No. o-2000.
     Refund provisions are equally as well defined. We
have carefully reviewed the statutes and have failed to
find any provision for making a refund of taxes on alcoho-
lic beverages required to be stamped which were subsequent-
ly damaged or otherwise made unfit for human consumption.
     You are therefore respectfully advised that no such
refund may be made and no credit on future tax payments
may be given therefor.
                        SUMMARY
               The Comptroller of Public Accounts is
          not authorized to make refund or give credit
          on future tax payments for overpayment of
Hon. Coke R. Stevenson, Jr., page 5,     Opinion No. W-483


              taxes on alcoholic beverages damaged or
              otherwise unfit for human consumption.
                                    Very truly yours,
                                    WILL WILSON
                                    Attorney General of Texas




JNP:ba
APPROVED:
OPINION COMMITTEE:
Geo. P. Blackburn, Chairman
J. Arthur Sandlin
J. Milton Richardson
Marietta McGregor Payne
REVIEWED FOR THE ATTORNEY GENERAL
By:   W. V. Geppert
