Hon. Robert      S.     Calvert                  Opinion     No.   WW-21
Comptroller      of     Public    Accounts
Capitol   Station                                Re:   Whether     theatre    is required
Austin,   Texas                                        to pay additional       tax under
                                                       Subdivision     22a of Article
                                                       7047,   Vernon’s      Civil   Statutes,
                                                       as a result     of the area       in
                                                       which    the theatre     is located
                                                       being   annexed     to the city of
                                                       Houston     subsequent      to pay-
                                                       ment   of the annual        tax at
Dear   Mr.    Calvert:                                 the beginning      of the year.

                 Your     letter  requests     an interpretation    of Article  7047,
Subdivision      22a,    Vernon’s     Civil   Statutes,  as applied   to the following
fact  situation:

                 A theatre    located    outside    the city limits    of Houston  on
January     lst,  1957,   paid the 1957 occupation          tax levied   by the afore-
said  statute.     On January       7, 1957,     the city of Houston     annexed  the
area   including    the theatre      location.

            Article    7047   provides:     “There    shall be levied.  . . an
annual occupation   tax, which      shall   be paid annually    in advance   except
when herein   otherwise     provided.     . . as follows:   . . .“.

                Subdivision     22a provides    for        a graduated   tax on     theatres
ranging  from      Five   Dollars   to Seventy-five          Dollars   annually,     depend-
ing upon the      population    of the city,  town         or village   wherein     they are
located.

                Your   inquiry deals          with whether     the theatre    in question
may operate      for the remainder             of the year    based  upon    its payment
of the lower     small    town rate.

                We think your       question    ,is answered      in the language     of
the statute     providing    that the tax is payable         “annualty    in advance”.
Although     the Statute    is not specific      on the subject,      we understand
that your     Department      has for many        years   uniformly    construed    the
statute    to mean     that the year     involved     is the calendar     year.   That
being   true,    the tax accrues      at the beginning       of the year    and is
based    upon the status       of the theatre      at that ttme.      No further   tax,
regardless      of changes     during   the year,      would   accrue   until the next
tax due date at the beginning           of the following       year.    The Statute
Hon.   Robert    S.   Calvert,    page    2    (WW-21)




contains   no   authorization,       express      or implied, for              the levying    of
an additional     tax later    in   the year      due to changing               conditions.

                InOpinion      No.   O-3009    this Department        considered       a
contention    that the occupation        tax levied      by Article      7047A-2    et seq.
on coin operated        machines      be construed       as a quarterly        tax.   This
would have      given   relief    to marble     table   operators     who contended
that they were       being   forced    to pay a year’s        tax on a machine          that
would not last over         three    months.      This   opinion    held that the
tax was an annual,         not a quarterly,       tax, payable      in advance.        The
effect   of the holding      was that an event         occuring     during    the year,
such as wearing        out of the machines,          would    not alter     the amount
of the tax due for the year.             We bel,ieve      that our holding        in the
present    opinion,    that the amount        of tax due at the beginning            of the
year   will not be altered         by the subsequent        annexation      proceedings,
is in harmony       with the holding        in Opinion     No.   o-3009.

                                              SUMMARY

                Article     7047,    Subdivision      22a,    Vernon’s     Civil
                Statutes,     levies    an occupation        tax on theatres
                payable     annually     in advance.         The tax is
                graduated,      depending       upon the size        of the
                city,   town or village,         in which      the theatre
                is located.        A theatre      located     in an area
                adjacent     to the city of Houston,             paying
                the tax on January            1, 1957,     may operate
                for the entire        year    under    the tax rate appli-
                cable    on the date aforesaid,            despite     the sub-
                sequent     annexation       of the area       in question     to
                said    city on January         7, 1957,     resulting     in a
                higher     population      bracket.

                                                  Yours        very   truly,

                                                 WILL     WILSON
                                                 Attorney    Gene-al




APPROVED:                                                 J.   Arthur     Sandlin

OPINION      COMMITTEE
H. Grady     Chandler, Chairman

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