                                                                     606
                                                               .




         OFFICE   OF THE   ATTORNEY     GENERAL     OF TEXAS
                               AUSTIN




Honorable George Ii. Sheppard
Comptroller of Publib Accounts
Austin, Texas
Dear   Siri                      opinion    MO. 0-7361
                                 Re:    Wnether trucks     stocked




       in the city of Aaarill
       store tax on the 8ix a




                                     plenished and serviced
                                       same source8 as hi8
                                         At times he will
                                  a ripplies   frorol one of

                      rueks will each be owned by the aanw
                      at will be operated on a partnership;
                     .operator of the truck uill receive
                 s of,tho nut proceed8 and one-third   will
       go to the truck QPmer- There may be some question
       as to the control    of these trucke, but under the
       present plan, It is the understanding of this de-
       partment that they will be controlled    by the owner
       of the store.
             *Question:     Will push   trucks   be suljject   to
        the Chain Store    Tax Law?"
                                                                        607.   1.
               I



Honorable   Ceorgs HI Sheppard,    Page 2


            In response to our request for additional         inf or-
mation,on   December 3, 1946, you advised us further:
           “You recently  received from this de art-
     ment a request for an opinion as to whet R~   er a
     truck making ealre would be subject to the
     atore tax.    I am furnishing you with informa-
     tion secured, by Mr. John U..Yileon(   District
     Tax Supervisor in Amarillo.
           Vhere are two tracks operating    In the
     Amarillo district.   One Is a semi-trailer
     making sales in Plrasant Valley,   which is
     north of Amarillo.   The other truck ie a
     f&you:;el   trailer operating in the City of
               .
           “The merahandiee is picked up at one
     of the stores and placed in the truck in
     display form.    The truak then proceeds down
     the street contacting    housewives and other
     potential  buyers.   They, in turn, enter thio
     partiaular  truak, make purahases of the mer-
     chandlee displayed,   and pay for same inside
     the truck.
          “The sal.es are made in the truoks.   The
     merchandise 1s not delivered  by truck drivers
     or salesmen to the purchasers in their homee.”
           Whether or.not the trucks and trailers   in question
are stores ie determined by the definition    of the term *store”
aa contained in the Taxae Chain Store Tax Law (house Bill 18,
Ch. 400, Acts J+l+thLeg. 1st C. 3. 1933, Codified aa Art. lllld,
Penal Code), said definition  reading as follows:

             Vea. i      The term tstorel    as used in this
     Aat,    shall be construed    to mean and include elly
      store or stores or any mercantile        eetablisbment
     or establiahmeuts      not epeaifiaally    exempted with-
     ‘in this Act which are owned, operated,         maintained,
      or controlled     by the 331ne person, agent      receiver,
     trustee,     firm, oorporation,    copartnership    or aesoc-
      iation,   either domestic or foreign,       in which goods,
     wares or merohandiee of any kind are aold, at re-
      tail or wholesale,*       (Underscoring ours),
                                                                    .
                                                                             6aEa
,.




     Honorable   George H. Yhepperd,   Page 3


                You etatr in effect  that these truoke and trallore
     are plaoee, *in which goodah weree and merchandise are eo1d.n
     Therefore,   if theso vehialse ere wetoreeR end/or %eraentile
     letabliehmeqte w then they would constitute   uetoree~ within
     the meeniag of the Chein Store Tex Len.
                The word *etom* was defined by the Commission of               ,.
     A eels in the ease of Continental   Paper Beg Co, v, Boeworth~,
     2f 8 8. W, 170, as follower




               The term *meraentlle eetabliehment+l    is defined       in
     21 Corpus Jurie 904 as follawe~
                 *A plea. where the buying and eellin    of
          ertialre   of aerahandlee de an employment f e
          aonduated.*
                                                                              ..ds-’
                 Tha Supreme CourO of the United States in the aaee
     of Fox v.   Ytendud Oil 00. 294 U. S. 93, 79* LI Ed. 786, in
     aonetruin    the Chein Store Aot of the State of Weat Virginia,
     (whioh de i inea’the word &ore in tha identical   phraseology as
     the Tetie Gheln Store Aat) in en opinion by Mr. Justice
     Cardosa, used the.following   lenguago:
                *. * + The ‘goods offered  for aale are to
         be underlltoad es having reference    to goods *of
         sny kind * and thaplaae      at which the eale is
         mede ehefl lnalude,not    only plaaee that in the
         WE:;      e erch of men would be designated as
                  .E ut broadly sneaking. eny meroantile
         eetebliehment,    whether a rtoic o? something
         &e**       (Undoreaorlng ours).
               Based upon the facts as iven us, and the definl-
     tione of the,worde and terms used f n the Cnein Store Act,
     together with the aonetruation   given b our Courts, we
     arrive at the ineeaapeble  aonclueion t hat the trucks end
                                                                         609   ,!

Honorable   Georke H. Sheppard,   Page 4


~trailera  are *merosntile   establiehaente    in which goode, weres
 and marohandlrew are cold.      In fact,   auoh vehialee  80 equipped
 and used. amount,.~.in our opinion,   to a atore on wheels.    A
 store is a atort;: whether mobile or immobile.
                    “.
            W4 trust   *@at we hate eatiefaotorb4ly    answered your
 inquiry.
                                           Yours   vary    truly

                                       ATTORNEY
                                              OENEUL OF TEXAS


                                       By+*
                                              w. v..   cappart
                                              Aaatstanlr
