                        OF     EXAH




Honorable Robert S. Calvert   Opinlon No. WW-593
Comptroller of Public Aacounts
Austin, Texas                 Re: Whether products mar-
                                   keted as "Little Cigars"
                                   are subject to the ciga-
                                   rette tax under Article
Dear Sir:                          7047c-1, V.C.S.
      We quote from your opinion request as follows:
     "The Cigarette Tax Law of the State of Texas
     describes a cigarette as follows: Sec. 1,
     paragraph (a):
         '(a) "Cigarette" shall mean and include
         any roll for smoking made wholly or in
         part of tobacco irrespeotive of size or
         shape and irrespective of tobacco being
         flavored, adulterated, or mixed with any
         other ingredient, where such roll has a
         wrapper or cover made of paper or any
         other material.. Provided the definition
         herein shall not be construed to include
         cigars.1
     "In line with this description there has been placed
     in trade channels for sale packages which are described
     as 'Little Cigars' and they are being marketed with the
     belief that they were 'Little Cigars' and not subject
     to the cigarette tax as assessed in our cigarette tax
     law.
     "I submit herewith the substance used as a wrapper for
     this little cigar together with an original package
     of same. Since there are several brands now being mar-
     keted which are being classified by the manufacturer as
     'Little Cigars' I am also submitting one of each brand
     which I have been able to secure. They will be marked
     individually as to brands. Also attached are Thermo-Fax
     copies of letter opinions of certain paper dealers de-
     scribing the wrappers of the enclosed items to be paper.
     It is my view that the writers of these letters are
     qualified to pass on such an issue.
Hon. Robert S. Calvert, Page 2 (Opinion No. WW-593)


    "Even though the manufacturer agrees that the
    content of the wrapper is 97 per cent tobacco,
    which has been homogenized, and 3 per cent for-
    eign substance It is conceded that paper can be
    made from tobacco, which is a fibrous substance,
    I have taken the position that the items classi-
    fied as 'Little Cigars' are cigarettes and sub-
    juect to the tax under our cigarette tax law.
    "Will you please furnish me with your opinion as
    to whether or not I am correct in the position I
    have taken."
     If it were not for the last sentence of Article
7047c-l(a) V.A.C.S. it is apparent that the products you
describe would fall within the Texas definition of a
"cigarette". In view of such sentence, however, it is
necessary that the term "cigar" be defined.
     After careful review of the authorities that exist
on the subject, we have concluded that in order to qualify
as a "cl ar", a roll for smoking must meet two require-
ments:    1) it must be wrapped in tobacco; (2) the filler
must be &'cigar" tobacco, i.e., the tobacco must be of the
type which is ordinarily used in cigars and is regarded in
the tobacco industry as "cigar" tobacco.
         "CIGAR" MUST BE WRAPPED IN "TOBACCO"
     A previous opinion of this department held that small
tobacco rolls, about the same size and shape of an ordinary
cigarette, rolled in a tobacco "leaf" and filled with cut
and shredded tobacco, were properly classified and taxed as
         Attorney General's Letter Opinions, Book 381, p.
;$$aT~~y 16, 1.938). This opinion states in part that "in
the absence of a definition of a cigar having been made by
either the Legislature of this State or the Courts of this
State, proper deference should be given the Federal defini-
tion." The Federal definition of a cigar is 'any roll of
tobacco wrapped in tobacco." 26 U.S.C.A. B 270.13.
     It is to be noted that the opinion referred to above
deals with rolls of tobacco wrapped in tobacco "leaf."
This raises the question of whether or not a "cigar" must be
wrapped in tobacco "leaf", or in tobacco in its natu-ialstate.
No such requirement is made under the Federal Law. To the
contrary, under the Federal Law tobacco that has been treated
with oil under pressure is still termed "tobacco". 26
U.S.C.A. 8 270.12. In view of this, we do not believe that
such a requirement may be made under the Texas law.
Hon. Robert S. Calvert, Page 3 (Opinion No. WW-593)


     The issue that must be determined is whether the
wrappers on the produ&s in question have lost identity
as "tobacco." This is a fact question. .As pointed out
in the Attorney General's Opinion cited supra, this
department is not a fact finding body. Therefore, the
question is left to your determination.
            FILLER MUST BE OF CIGAR   TOBACCO

     ~The case of State v. Goodrich, 113.N.W. '388, 133 Wis.
242, 14 Ann.Cas. m2 (1907), points out the distinction
in "cigarette" and "ciaar" tobacco. The court had before
it the-question of whegher or not certain tobacco products
knownas "Between The Acts Little Cigars" were cigarettes
or cigars. The following quotation summarizes the prob-
lems involved:
     "A most serious difficulty with the State's contention
     for a classification between 'cigars' and 'cigarettes'
     which would include some tobacco wrapped rolls under
     the latter designation is that it could give no cer-
     tainty of demarcation. If some tobaaao covered rolls
     of tobacco are 'cigarettes' and others not, how shall
     the ordinary citizen or the courts decide which are one
     and which the other. Counsel suggest size, but where,
     between the smallest and the largest, shall the line
     be drawn? the gradations are almost infinlteslmal, and
     some paper covered cigarettes are as large as cigars
     which everyone would recognize as such, Again, he
     suggests the cylindrical shape and open ends, but both
     these are charaoteriatic of the oheroot and the stagy,
     either of which offers complete antithesis to the gen-
     tle cigarette6 so easily mastered by the school boy.
     Again, the fine granulated tobacco filler is urged,
     but that is characteristic of only some cigarettes and
     is also characteristic of may large and strong cigars
     . . .Such indefiniteness and unoertainty would be wholly
     out of place in a penal statute, and we cannot believe
     the Legi~slatureintended it."
After examining in detail the difference in processing,
manufacture, taste, and aroma of the types of tobacco used
respectively in cigars and cigarettes, the court concluded:
     "We reach the conclusion that the articles sold by the
     defendant are not 'cigarettes' within any reasonable
     do not mean to deolare
Hon. Robert S. Calvert, Page 4 (Opinion No. WW:593)


    the legislation or now exists, but it is at least
    conceivable that so complete an equivalent of the
    acknowledged ciga?%~~        E devised, pe=aF
    for the very purpose of evadigthe   law, that a
    courtshould declare E within -thelegislme-
    prescrm."-
Under the authority of this case, the fact that a particular
roll of smoking tobacco has a wrapper,made of tobacco does
not necessarily determine its classification. To hold con-
trary would open the door to fraud and evasion of the law bye
simulation and Imitation of cigars by products which are in
actuality the equivalent of ordinary cigarettes.
     The determination of whether or not the filler used in
a particular tobacco product is cigar tobacco is also a fact
question.
                         SUMMARY
               Under the Texas Cigarette Tax Law all
          rolls for smoking wrapped in paper or any
          other substance are taxable except cigars.
          A cigar has two basic requirements: (1) the
          roll for smoking must be the type of tobacco
          which is ordinarily used in cigars and is
          regarded in the trade as cigar tobacco; and
          (2) such roll must be wrapped in tobacco.
          The determination of whether these require-
          ments are met are fact issues to be decided
          by your department.
                                    Yours very truly,




JNP:bct
APPROVBD:
OPINION COMMITTEE:
George P. Blackburn, Chairman
Jot Hodges, Jr.
Houghton Brownlee, Jr.
Lawrence Jones
REVIEWED FOR THE ATTORNEY GENERAL
By: W. V. Geppert
