                                                        OF TEXAS
‘1                OFFICE   OF THE ATTORNEY
                                     AUSTIN
                                              GENERAL



 a-   0. lnrnn
 Ano1”W
      OplruL

       Honorable George H. Sheppard
       Comptrolleror Publio Aooounts
       Austin, Texae
       Dear Sir:




                     This ir in anawe
        1942,    In whloh you may




                                  o example I aubmlt the lbllowing.
                                  n A maintain8 Its orfloo in an
                                  (the lnoorporatedtown 0s~ be
                                  3,000 Inhabitants). It operate8
                                 noorporatedtown or lee8 than

                 and also operatea a store in an inoorporated tom
                 or less than 3,000. Is euoh utility oorporatfon
                 exempt rrom paying the ohaln atore tax on the StQrOa
                 it operates in these towne?"
Honorable George Ii.Fhfhepprrd,
                             Page 2


          It is our opinion that CorporationA:,wouldbe sub-
jeot to the Chain ?tore Tax on all lte etoree located in
unincorporatedtowus, irreapeotireof the population under
Sea. 9, Art. 11116, Texas Penal Code, (Sec. 1, Art. 19, Aote
19&l, 47th Leg., H. B. MO. 8).
          Article 7060, R. '. S. of Texas, a8 amended by Art-
icle V of El.9. Zo. 8, Acts Re$. SM. or 47th Leg., requires
quarterly reports frox# "Caoh lndirldual, oompany, corporation
or aasooletlon,owning, operating,managlng or oontrolllng
any gaa, electrlo light, eleotrio power, or water worka, or
water and light plant, located dthin an7 lncoruoratedtown
or olty in this State, and used for local sale and dletrlbu-
tlon In said town or city and oherglng for suoh gas, eleotrlo
lighta, eta." showfng the gross amount reoelvsd for suoh
businees done in each such incorporated tom or oltp, and
providing for the payment or an occupation tax baaed on 8uoh
groaa reoelpte. No provision le made for suoh report and
no suoh tax IS levied on auoh bueineasee conduoted In unln-
corporated towna.
           The laet paragraph st said Art. 7060 reads am
roiiowat

             mAad provided further that :atllitieapaying
      an oooupetiontax under thie ATMole shall not
      hereafter be required to pay the lloense fee lm-
      poeed in Artlolr 50, House Bill BG. 18, Chapter
      400, Aots or Forty-fourthLegislature, ror the
      privilege   or selling gas and lleotrio 8ppllanoea
      end part8 ior the repair6 thereof, in town8 of
      three thousand (3,000)or leaa in pcipulatlon ae-
      cording to the next preoeding Federal Csneua.
      Aa amended Acte 19Al, 47th Leg., H. B. #8, Art.
      v, 8 1."
          It will be noted that those utilities pefing an
oooupation tax under this Art.1410shall not be required to
pay the llcenee fee imposed in Art. 5a, B. B. i%. 18, Chap.
l&O, Aots 44th Leg., ior the privilege of selllng gae and
eleotrlc appliances and parts for the repair thereof, in
towns or 3,000 or leas population acaording to the last Fed-
eral Gamma.
Konorable George Ii.Sheppard, Page 3


          Seotlon 5, Art. 11116, Texas Penal Code, as amended
Acts 194l, 47th Lag., H. EL NO. 8, Art. XIX, Sea. 1, epeol-
floallp exampte those businesses now paplng an occupationtex
measured by groea raoalpts,
          It la our opinion, a8 heretofore expressed, (Opinion
Ro. O-2507) that eeld Seatlone 5 and 5a, Art. lllld, Penal
Coda of Texea, tax dlrrerent typea or stores, and that Sea-
tlon 5a was included by the Leglaleture In order to aubjeot
to the Chain Store Tax certeln stores not tax&d wnder the
provtslona 0r Seation 5.
          It may be pointed oukthat since no oooupatlontax
baaed on groae receipts has ever been levied or paid on store@
ior the prlyllege of selling gaa and electric appllanoeasad
parts for the repair thereor In unincorporatedtowns, such
stores have never been axmpt from the payment of the tax un-
der said Section 5.
          Thla being true, we reach the conclusion that the
provlalona or Artlole 7060 do not In an;plaa affeot the trx
12ablllt~or auoh storea ior the reason that they have never
been eubjeot to the payrnentof the Ohaia Stora Tax under Sao-
tlon   5s therein   referredbut ara now, and have been, llna a
                               to,
             of the Aot in 1935 aubjeot to ths said tar un-
the enaotllunt
der 580. 5.
          We, therefore,hold that utllltlea even though pay-
ing gross raoalpta tar under Artlole 7060 should be required
to par a Ghaln Store Fax iOr the privilege of operating stores
selling gee and lleotrlo appllanoea and parts for the repair
thereof In unlnaorporat*dtownr under the prcvialona of Peg.
5, Art. 11116, Penal Coda, as amended Aots 1941, 47th Legia-
lature, A. B. No. 6, Axt. XIX, Fee. 1.
          We rurther hold that all atone o? CorporationA
locatad in Incorporatedtome of more than 3,000 population
aooordlng to the next preoedlng Federal 00~8~s are aubjaot
to the Chsin Store Tax aa provided by Art. 5a, Hous? Bill
Eo. 1.8,Chapter 400, Aots or 44th Lagielatuse, for the prirl-
lage of selling gas and eleotrlo appllenoea and part8 for
the repair thereor. The terms or ssld Sao. 58 apaoifieell~
tax such stores and they are not within the exemptloupro-
vided by Art. 7060.
Honorable Oeo~ge k   i?heppard,Page k


          Ztores of this oharaater, paying owupatlon tax
me08~ea by groea raoeipte and loostea  in inoorporataatowns
of 3,000 or lees population aocording to euoh Census are
exempt from the payment of the Chain l-toreTIIXunder the
provirialone
           of said Art. 7060. This appears to be the only
exemption provided by the quoted paragraph oi that Artiole.
                                        Very   truly yours
