            T~ICATTOIRNEY               GENERAL
                         OF   TEleLAS




                                         February18, 1939

HonorableHomer L. Moss
CountyAttorney
WheelerCounty
Wheeler,Texas

Dear Sir:                      OpinionNo. 0-lg0
                               pe: School'spaymentof ,occupation
                                   tax for ormeting skatingrink
                                   and theater -Whether person
                                   principallyengagedas farmer
                                   is liablefor paymentof
                                   occupationtax for occasionally
                                   acting as auctioneer

We are in receiptof your letterof recent date in which you request
an opinionfrom this Department. The pertinentportionsof your
letterbeing as follows:

     "First,we are interestedin the problemof taxinga
     skatingrink, under the followingconditions:

     *TheWheeler IndependentSchool Districtowns and
     operatesiu connectionwith its athleticprogram,a
     gymnasiumupon its campus,which togetherwith all
     equipmentis schoolproperty. Schoolpatronsand
     other childrenof Wheelerhave latelypurchasedan
     adeauatesupply of skates and accessmies.I understand
     that is is agreed that these shall be the propertyof
     the school athletic association. It seems that a
     skatingrink is being sponsoxedbythe school or
     athleticassociationin connectionwith which the
     gymnasiumand its floor is being used. A small fee is
     chargedto those desiringto pursue the recreationof
     skating,during scheduledhours of week nights. The
     privilegeis grantedto studentsand the generalpublic
     alike and the buildingis open to the public. Any one
     desiringto skate !my do so upon paymentof the
     desired-feeand may then pursue the sport with skates
     furnishedbyethe housefor asoheduled timeLeach
     evening~whanthe Gym. 19 open'tothe pastime,-A ~fee
     entitlesthe participantto~enjoy-the.pastime'for  a
     soheduled.,timedqipg the particulaxJevenlng .ir.which
     he pays. ,Ifhe or she desiresto skate on the followinr
     or anothernight anotherfee is charged. The funds derived
Hon. Homer L. Moss, February18, 1939, Page 2   O-190



    from these fees~oradmissionsto the floor are used
    at presentto pay for the skatesand expensesof
    operatingthe hall for the purposesabove named.When
    the skatesare paid for, it is the intentionof the
    sponsors,that is, the athleticassociationto place all
    profitsabove expensesin the athleticfuxd, to be used
    for basketballand other athleticexpensesjust as
    revenuederivedfrom admissionsto basket ball games or
    other athleticsportswould be used. Understand,.the
    partieswho furnishedthe money to make the initial
    paymenton the skateswill be reimbursed."

1. Your questionconcerningthe above quoted portionof your letter
is as follows: Is the skatingrink being operatedfor profit,and
as such is the school liablefor paymentof occupationtax under
the provisionsof Article 7047, Section 341

2. In the next questionyou inquireas to whether or not a rural
high schooloperatinga weekly pictureshow on its campusand charging
admissionfrom the generalpublicwould be liablefor the paymentof an
occupationtax?

3. In the next questionyou inquire as to whether or not a farmerwho
occasionallyacts as an auctioneerin the sale of farm productswould
be liablefor the paymentof an occupationtax?

The pertinentportionsof your letter in connectionuith the third
questionbeing as follows:

     qe have one or more men in the countywho are principally
     farmers,but hold themselvesout as auctioneersin that
     they cry sales of farm outfitsin differentparts of the
     county duringthe early part of each year, sometimes
     auctioninglivestockor hogs along. By farm outfits,I
     mean a situationwhere a farmer sells out all feed on hand
     all implementssuppliesand livestockand the like. These
     local auctioneerschargea small profitbut engage in the
     crying of perhapsa dozen or less sales per year. Such
     is not their main occupationor means of livelihood."
In answeringquestionNo. 1 in your inquirywe deem it necessary
to first discussthe phrase,or term, ' used for profit"as used in
Article 7047, Sec. 34, R. C S. of Texas. The statutedoes not attempt
to definenor limit the meaningof said phrase or term, and since the
act does not define it, it must be given the meaning ordinarily
attributedto the phrase.
.   .




         Hon. Homar L. Moss, February18, 1939,Page 3 0-W



         Profit is usuallyregardedas "the gain made on any businessor investment
         when both the receiptsand the paymantsare takan into consideration."
         6 Words & Phrases,First Series,p. 5659.
         I direct your attentionto the case of HoustonPelt & TerminalRailway
         Companyvs. Clarke,122 S. W. (2d) 356,which amply definesand
         discussesthe word *profit". From the decis+m in the above case,
         togetherwith the definitionabove stated from Words & Phrases,we
         are of the opinionand you are accordinglyadvisedthat the
         skatingrink in questionis being operatedfor profit.

         Next we will discussthe questionof whether the school is engagingin
         the "occupation"of operatinga skatingrink. In discussingthis phase
         of the question,wense principallythreesoningand languageas
         submittedin your brief, whichis to the ,effecCthat the school,as set
         out in your inquiry,is not principallyin the businessof operatinga
         skatingrink, yet such an institution,it seems could pursue a taxable
         occupationas an auxiliarymeans of obtsiniagrevenue. In other words,
         if the recreationoperatedin this instanceis otherwisetaxable,I:.
         hardlybelievethat the fact that theinstitutionis operatedfor
         educationalpurposeswould constitutean exemption.For example, the
         operatingof a campusstore, or the operationof a public theaterto
         which the generalpublicwould be invited,would be engagingin an
         occupationother than that of the operationof a publicschool.

         It is, therefore,the opinionof this D&rtment,~and you are accordingly
         advisedthat the school,in conductingl&e operationof a &sting rink,
         is so engaged in that operation,dnd inasmuchas we have held in this
         opinionthat the operationis for profit,the school in such operation
         would be subjectto the paymentof 8n occupationtax, as is providedin
         Article 7047,Sec. 34.

          In answerto questionBo.*2, we are of the opinion,and you are so
          advised,that a rural high school operatinga weekly pictureshow,
          and chargingan admission,would be subjectto the paymentof an
          occupationtax for the same reason as stated in answer to question
        . No. 1.

         In answer to questionNo. 3, we wi$htodirect your attentionto certain
         facts in your letterwith referenceto the farmersholding themselves
         out as auctioneerswhich reads, in part ss follows:

              %e have one or more men in the countywho are principally
              farmers,but hold themselvesout as auctioneersin that they
              cry sales of farm outfitsin differentparts of the county
              during the early part of each year, * * *
                                                                 c     .




Hon. Homer L. Moss, February18, 1939,Page 4     0-190



You will note from the above facts that the personsare holding themselves
out as auctioneers.as a part of their means of livelihood,and as such
would obviouslybe preparedto engage in that occupationwheneverthe
opportunityshouldrequire,depending,however,upon the amount of
auctioningto be done in the county. You will note further in your
letterfactswith referenceto the auctioneersreceivingprofit,
,pertinent
         portionsof your letterbeing as follows:

     "These local auctioneerschargea small profitbut engage
     in the cryingof perhapsa dozen or less sales per year."

It is clear from the above facts that these auctioneersreceiveprofits
from the auctioning,thisbeing one of the essentialelementsof an
occupation,.We directyour attentionto the case of Tarde vs. Benseman,
31Tex. Rep. 282, in which the court,in discussingthe term "Occupation"
had the followingto say:

     what is,an occupationin contemplation of the constitution
     and the law? The connection&which the word 'occupation'
     stands in the constitution
                              would seem to give some indication
     of what was intendedby it. It says: 'Pursuingany occupation,
     trade, or profession.'Certainlythe two latter, ' tradeor
     profession,'importprofitable~pureuits."

We also direct your attentionto the case of Williamsvs. State,23 Tex.
Ct. of AppealsReps. 499, in which the court, in discussingthe defintion
of "occupation*used the followinglanguage:

     "It does,notrequireeven a single sale to constitutethe
     offense,for a parson may engage in the businesswithout
     succeedingin it, even to the extent of one sale."

From the above facts quoted from your letter,togetherwith the decisions
cited,we are of the opinion,and you are accordinglyadvised,that such
personsholdingthemselvesas auctioneerswould be subjectto the payment
of an occupationtax as is requiredby Article7047; Section6.

                                         Yours very truly,

APPROVED                            ATTORNEX   GENEBALOF TEihS
s/ Gerald C. Mann
        GXNERALOF TKKAS
ATl!ORN!IY                          s/ GeorgeP. Kirkpatrick



                                    BY
                                         GeorgeP. Kirkpatrick
                                                     Assistant

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