            wHEAimoRN~~              GENERAL
                          OF-TEXAS




Honorable Geo. H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir:              Opinion No. O-1237
                       Re: Whether under given facts situat,ion
                            twenty per cent prize tax is due'under
                            Article 70&7f, R. C. S.
We are in receipt of your letter of August 4, 1939, wherein you
outline three fact situations, as follows:
    1. The owner of a place of business displays a jar of beans
    in his store and people entering such place of business are
    invited to guess at the number of beans in the jar. Anyone
    is eligible to participate in the guessing contest, and the
    one who guesses closest to the number of beans in the jar will
    receive the prize which is given away in connection with the
    contest whether he is or has been a customer of the store or
    not.
    2. The owner of a store has printed duplicate numbered tickets
    and people who enter the store are given one of such tickets.
    He drops one number in a container and retains the other.
    Later a drawing is held and the person holding the number which
    corresponds to that drawn from the container receives the a-
    ward. No charge is made for the ticket, and anyone entering
    may participate and receive the award whether he is or ever
    has been a customer of the store. A person may not receive
    the award unless he is in the store at the time of the drawing.

    3. The proprietor of a motion picture theatre keeps a ledger
    in which anyone may sign his name without lost to him and re-
    gardless of whether he purchases or ever has purchased a
    ticket from the theatre. On each Thursday the drawing takes
    place and the theatre is closed and not in operation and is
    open to all alike, to which drawing there is no admission
    charge. A person may be present at the theatre at the time
    of the drawing and if his name is the one drawn then he will
    receive the prize, or any person whose name has been signed
    may go by the office of the theatre at any time Thursday and
    request that he be represented bats
                                      the drawing, in which event
Honorable Geo. H. Sheppard, page 2    O-1237


    he is listed as being eligible for the prize and in such event
    if his name is drawn, he will receive the prize whether he is
    present or not. If the person whose name is drawn is not pre-
    sent or has not been so listed as being eligible for the prize
    then the drawing is carried over to the next week and so con-
    tinues until the name of some person present or eligible
    is drawn.
You request our opinion as to whether the twent   er cent gift or
prize tax levied by Article 7047f, Revised Civi18 tatutes, is due
upon the prizes given away under the above three fact situations.
Said Article 7047f reads, in part as follows:
    "(a) Every person, firm, or corporation conducting a theatre,
    place of amusement, or any business enterprise in connection
    with the operation of which a prize in the form of money or
    something of,value is offered or given to one or more patrons
    of such theatre , place of amusement, or business enterprise,
    and not given to all patrons thereof paying the same charge
    for any certain service, 'commodity,or entertainment, shall
    make a verified monthly report on the twenty-fifth day of each
    month to the Comptroller of Public Accounts of the State of
    Texas, showing the amount of money so given in prizes, and
    the value of all prizes or awards so given in connection with
    such business during the next preceding month.
    '*(b)There is hereby levied a tax equal to twenty per cent
    (20$) of the value of all such money, prizes, and awards given
    in connection with the operation of each and all of the fore-
    going business enterprises, and at the time of making the re-
    port to the Comptroller of Public Accounts, the owner or oper-
    ator of any such business shall pay to the State Treasurer
    such tax upon the total amount of money, prizes, and awards
    so given during the next preceding month.* * *I'
That part of the statute requiring that the prize be offered or
given away in connection with the operation of a theatre, place
of business, or business enterprise is satisfied in each of the
above cases. However, the giving of the prize in connection with
the operation of a theatre, place of amusement, or business enter-
prise alone is not sufficient to mature the tax. If such had been
the intention of the Legislature more apt words could have been
used. For the tax to be due the prize must be offered or given to
one or more patrons of such theatre, place of amusement, or bu-
siness enterprise and not given to all patrons thereof paying the
same charge for the commodity or entertainment. As used in this
statute, we think the word patron is used in the same sense as
customer. Ne do not believe that mere entrance into the bean
guessing contest or acceptance or a ticket and dropping one end of
it into a container and attending the drawing, or registering at
the theatre and attending the drawing or taking the precaution to
. . ..   ^



Honorable Geo. H. Sheppard, page 3            o-1237.


be listed as being eligible for the prize in the manner provided
would constitute one a patron or customer of the store ortheatre.
If the statute had so intended it is .submittedthat the same re-
sult would have been accomplished by simply levying the tax upon
the giving of the prize in connection with the op~erationof the
place of business without mentioning patrons of such business en-
terprise or theatre.
In case of doubt tax statutes must beoonstrued moiststrongly against
the government and in favor of the citizen. State v. San Patricia
Cannin Co.,,17 S.M. (2d) 160; Yellow Cab Co. v. Pengilly, 11 S.".
(2d) $0.
Our answer to your question is that under the facts submittedto
us the tax in question is not due under any~~ofthe fact situations
set out above. In this connection we understand that the prizes
are offered and given to non-patrons as well as patrons.,and that
no practices are engaged in such as would hamper or embarass the
non-customer who is participating in the enterprise in an effort
to receive the gift.
                                          Yours very truly
APPROVED AUG. 11, 1939               ATTORNEY GENERAL OF TEXAS
GERAFIIC. MANN
ATTORNEY GENERAL OF TEXAS
                                     BY
                                            Glenn R. Lewis
                                                 Assistant
GRL:lm:ml
