              THEA~O~~EY                   GENERAL
                           OFTEXAS

GERALD Co MANN             AUSTXN   1,. TEXCAS




                                             5t?zzaz
  Honorable George ?I. Sheppard
  Comptroller of Public Accounts
  Austin, Texas
  Dear Sir:                     Opinion No. O-3637
                                Re: Authority of Comptroller~to permit
                                     a transfer of the chain store
                                     license Issued to a utility store
                                     operating in a town of less thank
                                     three thousand '(3,000) Ynhabltants
                                     to a store In a citg'having a
                                     population of more than three
                                     thousand (3,000), in vlew~of the
                                     amendment to Article 7060, Revised
                                     Civil Statutes.
             From your letter of June 4, 1941, and attached data
  we gather the following facts:
             'A certain utilities company operating stores
       in several towns of less than three thousand (3,000),
       Inhabitants, timely paid the fees fixed In Section
       5a of Article lllld, Vernon's Annotated Penal Code,
       obta'lnlnglicenses to operate during the year 1941
       In said respective towns.
  Article 7060, Revised Civil Statutes levies a gross receipts tax,
  or occupation tax measured by gross receipts, on certain utlll-
  ties. That statute was amended by Article 5 In House Bill No.
  8, Forty-seventh Legislature, effe!ctiveMay 1 of this year. Said
  Article 5 of House Bill 8 contains~the following paragraph:
              "And provided further that utllltles paging
      an occupation tax under this Artlcle'shall not here-
      after be required to pay the license fee imposed In
      Article 5a, House Bill No. 18, Chapter 400, Acts of
      Fortg;fourth Legislature, for the privilege of sell-
       lng~gas and electric appliances and parts for the
      .repalrs thereof,'Fn tolrnsof three thousand (3,000)
       or less in population according to the next preced-
       ing Federal Census."
              Said utllitles company pays the tax levied by sald~
  Artiicle 7060 on the stores thus operated In said towns of less
Honorable George H. Sheppard, page 2           o-3637


than three thousand (3,000) population. Hence as to suctistores
the utilities company may not hereafter be required to p&g the
license fee fijiediLnSectlon 5 of said Article 11116; Said
utilities company has requested you~'topermjt the transfer of
the licenses thus Issued for the year 1941 to-the storks oper-
&tlngTn towns of less thiuithree thtius&na'(3',000)  Inhabitants
to.stores In cl'tles~of popUl.%tlWtiore'thafi'three thousariV
(~3,000).The tax on such-'itores'~Qas.'paldprior to the enact-'
i&&t of H&se Bill No; '8 and we are-'adviaed,thatthe stdr8s'ln
tieidtowns of less than three thousand~(3,,000)~'inhabit~nts'wlll
contlinieto opepate. You request our opinion-'ahtb whether the
Comptroller Is authorized to permit such a transfer.
                                                .,,
          -,T'he
               net result of allowing sucK'a tiiansferWould be
to refund a'part of the 1941 chain store tax paid bn'these"
stoi%s operating in towns of less than three thbutiana(3;OOO)
inhtibltants. The statuttishowhere provide for such~a transfer
dr refund. The quoted part o'fArticle 5, R.B. 8’;merely ~PO-
vides that the utilities company"""shallnot hereafter be r6;'
qulred to pay" the.'chainstore tax~bn these particular stbi-es.
W&do not believe an lhtentlon to make's r&fund, even"thotigh
iiiddirectlg',
            can"b6'gleaned from this language. The tax for'1941
had been paid, a'fact known tb the Legislature. Had it been -'.
ileslredto make a refund, 6r allow aiiypabt of such paymgnts as
a'credlt upon other taxes accruing, apt language could have been
found-easily to evidence such Intent. Our answer to your ques-
tion Is a negatlve one.                                  .
                               Yours very truly
                           ATTORNEY GENERAL OF TEXAS

                               By s/Glenn R. Lewis
                                    Glenn R. Lewis
                                    Assistant
GRL:db:wc
APPROVED JUN 14, 1941
s/Grover Sellers
FIRST ASSISTANT
ATTORNEX GENERAL
Approved Opinion Committee By s/BWB Chairman
