                                     GENEEAL,




Honorable Robert S. Calvert           Opinion No. C-454
Comptroller of Public Accounts
State of Texas                        Re: Whether the Comptroller
Austin, Texas                             of Public Accounts will
                                          be required to collect
                                          the difference in tax
                                          of 3 cents per package
                                          on cigarettes stamped
                                          at the old rate on hand
                                          as of the closi~ngof
                                          business on June 33,
                                          1965, and related
near Sir:                                 question.
     We are in receipt of your letter requesting an opinion on
the above captioned matter.
     We quote the following from your letter:
            "The 59th Regular Session of the Texas
            Legislature passed House Bill #1181
            (copy attached) which amended Article
            7.06 of Chapter 7, Title 122A, Taxation-
            General, Vernon's Texas Civil Statutes,
            requiring an additional tax In the
            amount of $3.50 per thousand on ciga-
            rettes in addition to the tax levied by
            Article 7.02; therefore, changing the
            cigarette rate from 8q! to ll$ per
            package or 80$ to $1.10 per carton.
            "This department requests an official
            opinion from you as to what effect the
            passing of House Bill #1181 will have
            upon Article 7.08 of Chapter 7.  Will
            this department be required to collect
            the difference In tax of 3$ per package
            on the cigarettes stamped at the old
            rate on hand as of the closing of
            business on June 30, 1965?


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Honorable Robert S. Calvert, Page 2         Opinion No. C-454


            "If we are   required to collect this
            additional   tax, please advise if the
            procedures   in Article 7.08 are
            applicable   for the collection."
     The caption of House Bill No. 1181 reads:
           "AN ACT amending Article 7.C6, Title
           122A, Taxation-General, Revised Civil
           Statutes of Texas, 1925, as added;
           levying an additional tax on cigarettes;
           providing an effective fate; and
           declaring an emergency.'
     The first two Sections of this Act read as follows:
            "Section 1. Article 7.06, Title 122A,
            Taxation-General, Revised Civil Statutes
            of Texas, 1925, as added by Chapter 1,
            Acts of the 56th Legislature, Third
            Called Session, 1959, is amended to read
            as follows:
            'Article 7.06.   Additional Tax.
           l(l) In addition to the tax levied by
           Article 7.02 herein, there is hereby
           imposed a tax of Three Dollars and Fifty
           Cents ($3.50) per thousand on cigarettes
           weighing not more than three (3) pounds
           per thousand and Three Dollars and Fifty
           Cents ($3.53) per thousand on those
           weighing more than three (3) pounds per
           thousand on all cigarettes used or other-
           wise disposed of in this State for any
           purpose whatsoever. The tax shall be
           paid only once by the person making the
            'first sale" in this State and shall
           become due and payable as soon as such
           cigarettes are subject to a 'first sale"
           in Texas, it being intended to impose
           the tax as soon as such cigarettes are
           received by any person in Texas for the
           purpose of making a "first sale" of
           same. No person, however, shall be
           required to pay a tax on cigarettes
           brought into this State on or about his
           person in quantities of forty (40)


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Honorable Robert S. Calvert, Page 3        Opinion No. C-454


           cigarettes or less when such
           cigarettes have had the individual
           packages or the seals thereof broken
           and when such cigarettes are actually
           used by said person and not sold or
           offered for sale.
           '(2) Payment of the tax shall be
           evidenced by stamps purchased from
           the Treasurer and securely affixed to
           each individual package of cigarettes
           covering the tax thereon as imposed
           by this Chapter: provided that such
           stamps may be purchased and affixed to
           such individual packages of cigarettes
           by a manufacturer of cigarettes out-
           side this State, in which case no
           further payment of tax shall be
           required: provided, further, that
           such stamps shall not be required to
           be purchased and affixed to sample
           packages of cigarettes containing no
           more than five (5) cigarettes per
           package, when the manufacturer of the
           cigarettes reports and pays the tax
           thereon directly to the State.
            ‘(3)  The net revenue derived from the
            tax levied under this Article shall be
            credited to the General Fund of this
            State. Provided, no portion of the
            revenues derived under this Article
            shall be set aside to any fund for
            the administration and enforcement
            of the cigarette tax law of this State.
            Provided, further, the net revenues
            collected under this Article may be
            credited daily to the Omnibus Clearance
            Fund hereafter referred to in this Act
            and on the first day of each month
            following the collection of the net
            revenues derived under this Article,
            the said net revenues shall be credited
            to the General Fund, except that the
            net revenues derived under this Article
            during the month of August of each year
            shall be credited to the General Fund
            on the thirty-first day of August of
            each year; it being specifically under-
            stood that no portion of the said net
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Honorable Robert S. Calvert, Page 4         Opinion No. C-454


             revenues of this Article shall
             remain or be distributed under the
             provisions governing the said
             Clearance Fund. t
              "Sec. 2.  This Act shall take effect
              on July 1, 1965."
     Section 3 Is the emergency clause of the bill and is
omitted because not pertinent to your inquiry.
     Examination of this amendatory statute reveals that it is
virtually an identical tax levy in all respects as imposed by
the existing Art. 7.06, except that the tax levied is $3.50
per thousand on the cigarettes rather than the existing $2.00
per thousand.
     The Legislature, by Art. 7.02(3), has previously declared
that,
             "The impact of the tax levied by
             this Chapter is hereby declared to
             be on the vendee, user, consumer,
             or possessor of cigarettes in this
             State and when said tax is paid by
             any other person, such payment shall
             be considered an advance payment and
             shall thereafter be added to the
             price of the cigarettes and recovered
             from the ultimate consumer or user."
Art. 7.41   declares the nature of the tax to be an excise or
use tax.
      By Chapter 7, known as the "Cigarette Tax Law," the Legis-
lature has provided a comprehensive plan for the levy, adminis-
tration, and enforcement of that law. For example, Article
7.36  imposes a penalty on whoever shall make a first sale of
any cigarettes without the proper stamp being affixed to each
package. Art. 7.35 imposes the duty of collection, supervision,
enforcement of the taxes and penalties of the provisions of the
entire Chapter on the Comptroller and gives that officer the
power and authority to make and publish rules and regulations
for the enforcement of said Chapter. Art. 7.08 provides the
procedure and basis for collection of the taxes levied under
Art. 7.02 and 7.06.   Paragraph (3) of Article 7.08, in part,



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Honorable Robert S. Calvert, Page 5       Opinion No. C-454


provides:
            !I
             . . .Every retail dealer and
            wholesale dealer having cigarettes
            to which stamps of the old
            denomination are affixed in his
            stock in quantities of two thousand
            (2,300) or more on the effective
            date of this Chapter shall immediately
            inventory the same and file a report
            of such inventory to the Comptroller
            and attach to such inventory a
            cashier's check payable to the State
            Treasurer in a sum equal to the
            amount of additional tax due on such
            cigarettes computed at the new rate
            provided in this Chapter. . . ."
     The administrative construction of this Chapter, as amended
and levying an additional tax is in accord with the interpretation
we make of the statute in question. The Legislature has amended
the statute on several prior occasions (1955 and 1959) and used
the identical language of the prior statute as it has done on
this occasion. The Legislature has met numerous times since the
departmental construction and administration of the Chapter by
the Comptroller, and the Legislature is presumed to have had
such construction in mind in amending the statute herein being
construed. Isbell v. Gulf Union Oil Co., 147 Tex. 6, 209 S.W.2d
762, 766 (1943): Calvert v. Fisher, 259 S.W.2d 944 (Tex.Civ.App.
1953, error ref.).
     The amended Art. 7.36 (House Bill 1181), being an excise
revenue measure, when subject to construction, must be construed
as most effectually to accomplish the legislative intent. They
are to be interpreted fairly for the state, justly for the
citizen, and liberally construed so as to effectuate their
purpose of collecting money in aid of revenue. 54 Tex.Jur.2d
165, Taxation, Sec. 41.

     We do not find any ambiguity or obscurity as to legislative
intent in the above statute.
     The Amendment here was obviously designed and intended
to alter Art. 7.06 only in the amount of tax to be levied on
the first sale by all parties subject thereto after the close
of business on June 33, 1965.  Art. 7.06, as amended, thus
becomes a part of the original Chapter 7 and takes the place
of the prior Art. 7.06. 53 Tex.Jur. 136, Statutes, Sec. 90:
82 C.J.S. 411, Statutes, Sec. 243; and cases cited in said

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Honorable Robert S. Calvert, Page 6        Opinion No. C- 454


texts. The general.rules
                     .    relating
                           ..._    to .construction of statutes
apply to such a statute as tnis imposing a license or excise
tax, and all the provisions of the Act should be considered
and construed as a whole to the end that all parts may be
harmonized wherever possible. 36 Tex.Jur.2d 630, Licenses,
Sec. 37; 53 C.J.S. 492, Licenses, Sec. 13; and cases cited
in said texts.
     We think the expressed intent of the Legislature in
Section 1, sub-section (1) and (2) of House Bill 1181, is to
levy an additional cigarette tax of $3.50 per thousand on all
persons "making the first sale" in Texas on and after July 1,
1.965,and that payment thereof "shall be evidenced by stamps
purchased from the Treasurer and securely affixed to each
individual package covering the tax thereon as imposed by
this Chapter. . . ." Therefore, any sale by any person on
or after July 1, 1965, must be evidenced by the proper stamp
paid for at the new rate levied, and any other sale is out-
lawed and subject to the penalties provided in Art. 7.36 of
Chapter 7.
     The language of the statute is broad enough and its
object general enough to reach conditions, persons, subjects,
and business within its purview and scope and coming into
existence subsequent to the passa e of the Amended enactment.
50 Am.Jur., Statutes.,Sect. 237; %2 C.J.S. Statutes, Sec.
319; Sutherland-Statutory Construction, Vol. 2, 3rd Ed.,
Sec. 5102; Browder v. U. S. of America, 312 U.S. 335, 85 L.
Ed. 862, 61 S.Ct. 599 (1941); Oil Well Drilling Co. v.
Associated Indemnity Corn   258 S.W.2d 523, 529, Affirmed,
153 Tex. 153, 264 S.W.2d 657 (1954).
     We therefore answer your first question in the affirma-
tive, and the Comptroller is required to collect the differ-
ence in tax of three cents per package on cigarettes stamped
at the old rate on hand b$ one who after midnight, June 30,
1965, makes a "first sale .
     You also ask the related question of whether the pro-
cedures in Art. 7.08 are applicable for collection. We
answer this question in the affirmative also, being of the
opinion that the procedures therein are adequate and
pertinent. The numerous date references therein to the
,'effectivedate of this Chapter" should be harmonized and
interpolated to intend and mean, in effect, "the effective
date of this Chapter, as amended," in accordance with the
well settled general rules or canons of statutory con-
struction. If some procedural provision in Art. 7.08


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Honorable Robert S. Calvert, Page 7        Opinion No. C-454


cannot be harmonized or made applicable to the enforcement of
the new tax levy, then we believe the Comptroller has the
power and authority to make and publish the necessary rules
and regulations to effect the collection procedures, as
authorized and contemplated In Art. 7.35(l).  Under Art. 7.08
(l), the Comptroller is expressly given the authority to design
the tax stamps In such size and denomination as may be needed
to carry out the purposes of Chapter 7.



            The Comptroller of Public Accounts
            will be required to collect the dlf-
            ference In tax of three cents per
            package on cigarettes stamped at the
            old rate on hand after midnight June
            30, 1965, under House Bill No. 1181,
            mending Art. 7.06, Title 122A,
            Taxation-General. The procedures In
            Art. 7.08 would be generally appllca-
            ble for the collection of the
            additional tax as levied.
                               Very truly yours,
                               WAGGONER CARR
                               Attorney General




KBT:dl
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Arthur Sapdlin
Harold Kennedy
Robert L. Lemens
Jack Goodman
APPROVED FOR THE ATTQRNEY GENERAL
By: T. B. Wright



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