                “P‘HJC    ATTORNEY
                                OP      TEXAS

GERALD C. MANN                  Auwms     ,I.TEXAS




  Honorable   Geo. Ii. Sheppard
  Comptroller    of Public Accounts
  Austin,   Texas

  Dear Sir:                          Opinion No. O-3640
                                     Re:   Gross receiptstax      due'bg
                                           Utilities   Company operating       in
                                           the city of Borger,      which had'
                                           less than 10,000 inhabitants         ac-
                                           cording   to preliminary     census
                                           reports   published   prior   to Jan-
                                           uary 1, 1941, but which has more
                                           than lO,OOOaccordi,ng     to correct-
                                           ed census figures.

                fin your letter    of May 31, 1941, you advise us that the
  first  release    by the local    census supervisor   (1940) gave the town
  of Borger less than 10,000 popula,tion,        which would class  it In
  the 2500 to 10,000 population         bracket, but that this was correct-
  ed by Washington release        on January 11, 1941, by rating   the city
  as having a population        of 10,018.

                You request   OUP opinion    as to whether the tax levied
  by Article    7060, Revised Civil     Statutes,  will   apply to Borger as
  being a city of more than 10,000 inhabitants           for the quarter   be-
  ginning January 1, 1941, based on receipts          for the quarter    ending
  December 31, 1940, OP will      the tax under the higher bracket        not
  apply   until   the quarter   beginning    April 1, 1941.

               Upon inquiry   at your office   we are advised  that the
  report   by the Utilities   company in question was not filed    In the
  office   of the Comptroller   until January 13, 1941.

               Said   Article    7060 reads     in part   as follows:

                 "Each indivfdual,compang,      corporation        or
       association,      owning, operatingor     managing or con-
       trolling     any gas, electric    light,   electric     power
       or water works,       or water and light    plant,    located
       within any incorporated        town or city    in this State,
       and used for local       sale and distribution      in said
       town or city,       and charging  for such gas, electric
       lights,    electric    power or water,   shall make quarter-
       ly, on the first       days of January, April,      July and
Hon G Geo 0 I-I. Sheppard,      page 2                 o-3640



     October    of each year, a report             to the Comptroller
     under oath of the individual              or of the president,
     treasurer      or superint.andent        of such company, cor-
     poration     or association         snowing the gross amount
     r,ecelved    from such business         done in each such in-
     corporated      city    or ,town within this State in ths
     payment of charges           for such gas, electric         lights,
     electric     power or water for the quarter               next pre-
     ceding D Said’individual,             company, cbrporation          OP
     association,       at the time of making said report                for
     any such incorporated             town 01” city of twenty-five
     hundred (2500) inhabitants             and ltess than ten thou-
     sand (10,000)        inhabitants,      according      to the last
     United States        Census next preceding          the filing
     of said report,          shall pay to the Treasurer           of this
     State an occupation            tax for the quarter        beginning
     on said date equal to seven-tenths                 of one per cent
     (0,7 of 1%) of said gross receipts,                 as shown by
     said report;       and for an incorporated              town or city
     of ten thousand          (10,000 3 Inhabitants
                                               ‘,’         or  more, ac-
     cording    to the last Uni’ted Stat,es Census next ~pre-
     ceding the filing          of said report,       the sa,id indivl-
     dual, company,         corporation     or   association,      at the
     time of making said report,              shall   pay to the Trea-
     surer of this State an occupation                tax for the
     quarter    beginning        on said date an amount equal to
     one and three-eights            per cent ‘(1 3/8$) of said
     gross receipts,         as shown by said report *”
                 The preliminary       report   or release     was one of which the
officials      and the public      might ,take notice        and upon which reliance
could be placed D In other words,               it ‘was a sufficient        Federal
Census D     Hol,comb   vs,   Spikes,    232  S.W,891;     Ervin   vs.   State,    44
3-W. (2d) 3800         Under   Article     7060   the  report   of   the  taxpayer
was due on January 1, 1941, regardless                  of the fact that no
penalty would be incurred            for failure      to file   for a period       of
thirty     days,    See Arts” 707dt and 7575, Revised Civil               Statutes,
In providing       that the tax should be graduated              “according     to the
last United States          Census next preceding         the filing     of said re-
port,“.     we thin’k it was conC,empXted that. the report would be
filed     on its due date,        In our opinion       the lower bracket        will
apply in this instantcoo
Honorable   Geo.     H. Sheppard,   page   3           o-3640



                                       Yours   very   truly

                                    ATTORNEYGENERALOF TEXAS



                                       By g/Glenn R. Lewis
                                            Glenn R. Lewis
                                            Assistant
GRLzlh:wc


APPROVEa JVL 12, 1941
s/Grover Sellers
FIRST ASSISTANT
ATTORNEYGENEZRAL

This   Opinion     Considered   And Approved   In Limited     Conference
