c   .




                    ~~EA~~ORNEYGENEPLAL
                                        OFTEXAS
                                       AUSTXN 11. TEXAS

                                               November 18,         1959


        Honorable   Robert S. Calvert                    Opinion     No. WW-73G
        Comptroller    of Public Accounts
        Capitol   Station                                Re:     #ether     parts for an air
        Austin 11, Texas                                         conditioner,     when bought
                                                                 arid used for repair pur-
                                                                 pose8,   are taxable   under
                                                                 A&2;+01        of X.B. 11,
        Dear Mr a Calvert          :                                    . e, 56th Leg.
                       By letter       dated   October     14,     1959,   you advised:

              “This      Department requests    the opinion                of   your
              office      on the following   q.1eart1or.s:

                    “IS an autarwbils     ir aold with an aIf COW-
              tioner    fn I: (and the tax Imposed by Art. 6.01 .
              of X.B. ll,, 3rd C.S,, 56th Leg. on such sale is
              duly paid) or IS an ai? oondltioner              is sold and
              installed    in an automobile       ,(and ths tax imposed
              bye Art. 20.04 of W¶.d Aot on auoh sale 16 duly
              paid) and then such air oond%tioner              bscomer in
              need of repair,     which repair        necessitates      the
              replacemant    of some    c;e-Dectlve part,        is the re-
              placement    of such dcfscttve        part In connection
              with and as a necessary          element    of tha rffeotub-,
             Alon of such repair       aervics      a ‘retail      sale’ 86
              &fined     in Art. 20.01 of said Aot?

                    “If it 1-s your opinion       that such replacement
              under such clrc-~mstsn~crs       is a ‘ret&l      sale’
              within %d.ch dcfinltlon,        thsn your opinion       is also
              requested     whether,    under such clrccmstances,        such
              rej)~,aJ~i”~~.~>,‘
                              <z,~-‘
                               ~; :, 1,2 an : 3.j: cc,nd.itone2: wlthi.7
              the dtfl I:j,tion 037 2,rt. 20.01      ii) of said Act.”

                       Und,er theauthority    of Attorney    General’s    Opinion
        No. WW-6c,6 (April      2Ll, 1.959) i,t .‘Ls apparent that parts ln-
        stalled   i.:~ t.he cource   of repair    of an e9.r conditioner      and
        billed  to the owner thEreof        (whether such ‘>iill,ng     segregates
        ohargee far services       and parts or includ~es Ghem in one total)
        arei the subject     of a “sale.”      However, because of the view
        taken of the second c,uestlon which you propound,              this point
        ir rendered moot.
Hon.     Robert.. S. Calvert,      Page 2          (Opinion     No. WW-734)          . . ..


            .’

           The pertinent portions     of the titie   to House Bill   3.1.
state that it Is “an act.     . .levylng    certain  new and addi-+:. ::
tional taxes for support of the State Government including
excise taxes on. . .air conditioners.         . .”  Article 20.04 of
House Bill   11 states;

             “There is hereby levied        and shall be imposed
       upon the sale,      distribution     or use of air condi-
       tioners    in this State an excise       tax equivalent   to
       three per cent (3%) of the retail           price for which
       such air conditioners
                         ..-- -      are sold,”    (Emphasis added)
              Although Chapter 20 of House Bill              11, in which the
 excise    tax on air conditioners          is set forth,       specifically
 taxes component parts of radios,              television,    sets or phono-’
 graphs,    there is no comparable          tax levied     upon component parts
 of air conditioners.          In view of this,         It olearly     appears that
 it was not the legislative           lnten t to levy the excise            tax upon
 component parts of air co,ndit.loners             sold for the purpose of
 repair.      This conclusion      1,s fortified      by, the canon of statu-
 tory construction        that all questions         ooncerning,    whether a rev-
  enue measure extends to narticular              objects    are to t’e. strictlv
‘construed     against    imposition     of the tax a.nd Ian favor of .the -
 taxpayer.       State V: San Patricia,        Cannrn.g Co., 17 S.W,2d 160’
  (Tex.Civ.App.      1929            t hl’atory);     ,Western Pu.bl’i,c Servic,e
 Co, v. Meharg, 116’T%w$3,              ‘~292 &WI     lb6 (lYZ( )” Southerland         ”
 Statutory     Construction      (2nd BtL), page 293, Ch. $7, Sec.. b701-
 and see Attommy        General’s     Opirdon No, W-fi34         (September     2,   ’
1959):
              A minute examination          eb the .definition        of .“a%rcondi-
tioner”      contaIned     In Article’ 20.01 ,of Chapter 20 of House Bill
11, 3rd Co&, 56th Leg.,              verifies     the foregoing       conclusion.
Th,e first     portion     of such definition         state,8 that “air’ c’ondi-
tionars”      shall mean any self-contained              unit,    apparatus,      device,
commonly knowni sold and used as an airy conditioner.                         This,
language merely Is declarafory~               of the intent       to levy the tax
upon, div;lces,.~known,      sold or used as air conditioner&                   The’::.
definition       then proceeds       to state ‘&at the term air conditi&er
“shall     include’ any Instrument,           ,apparatus,    or mechanical        con’t;ri-
‘Vance -desIgned,       constructed,       or assembled as part of .any s&h
 self-oontained       unit,    apparatus,       or -device   to cool or ,assist         in
the cooling       of air In any manner.”             This Language does hot
extend, f&e. ioope of the tax to inG.ude gar’t%t@dtslJ.e@                      .%n air
condltlbnetis       during the course         of repair.       Iii vlew,.bf   the leg-
islativk      intent ‘and the canon, of statutory:             construct$on       dfs-
cusse~dabore,        this language c,an only be ;construed               to, include
all instruinents,,       ‘apparatus or contrivazxes            which are designed
for use ln,,~dr’ constructed,@               assembled as part ofj an original
tqxablk :unif:,
Hon.   Robert    S. Calvert,’    Page 3            (Opinio:?     No. W&T?&)



              The second    sentence    of   the    definition     of   the   term air
conditioner      states:
       II . . The term ‘air       conditioner’     shall also
       irklude   all sub-assembl.les,      devices    or instru-
       ments commonly used In conjunction           with any
       such other apparatus,       device,    sub-assembly     or
       Instrument,     which when combin,ed or connected
       as a functioning     self-contained      unit,   apparatus
       or deyice    will constitute      an air conditioner.
        . . .

This language does not enlarge the scope of the tax so as to
tax other than air conditioners             as that term Is defined.
Though the language used is broad,              specifying       sub-assemblies,
devices,   etc.,     It is limited       by the phrase “which when com-
bined or connected          as a functioning      self-contained       unit.”
The tax is still         levied    only upon %he air conditioner.              ObVl-
ously the language in the second sentence                  was included      for
one purpose,     i.e.      to avoid fraud and evasion          of the tax by
sales of separate         pa.--ts of air COl?ditiOr.erS      with a subsequent
assembly thereof         e.s an orlginnl    taxable     aiz conditioning        unit.
Parts sold for s;lch purpose are taxable,                but the definition
of “air conditlo?er”   Ij      affords   no basis upon which to tax re-
placement   parts or par~ts Installed           in a!.r conditioners         during
the course    of repair.1

             In summary you are advIsed that a3.1 de-~ioes,      assem-
blltis,    sub-assemblies,    etc., designed   or sold for orlgklal
installation       or assem3ly’ as a3 air co;:diti?::er  are taxable,
but that parts sold or installed         fo? the purpose or during
the course of repair       are not taxable.




         language is not in conflici:        with i-:5& oplr.ior, expressed
  aDove.      It wa7 inci2ded    ir? Opilslion No, WW-53G only to iiI23-
  trate    the proposition    that a11 devlczs,        sub-assemblies,
  etc.,    sold or designed    for origkal       i>stal?afion     or assembly’
  as an air cord.itioner      would be taxable.
Hon.   Robert   S., Calvert,   Page 4      (Opinion     No. ww-734j’



                               SUMMARY

                Parts for a~r:.~coaditio~etis   when ,~..
          bought and used for repair      purposes  are
          not taxable   under Article    20.01 of H.B.
          11, 3rd C.S.,   56th Leg.
                    ,                   Yours   very   truly,

                                        WILL WILSON
                                        Attorney General,




JNP:b<t

APPROVED::'

OPINION COMMITTEE:
John Reeves, Chairman

Robert T. Lewis
J. Arthur Sandlin
Robert G. Scofield

RE'JIEWEDFOR T;-IE ATTOtiEY GENERAL:

By:    W. V. Geppert
