        TEE             ATrO?a?tNEY GENERAL
                               OF      TEXAS




                                August    21, 1951



Hon. Robert S. Calvert
Comptroller   of Public Accounts
Austin, Texas                    Opinion                 No. V-1247

                                            Re:   Taxation of motor bus com-
                                                  panies during July, August
                                                  and September    when the law
                                                  requiring  quarterly payments
                                                  in advance has been amended
                                                  to require payments at the
                                                  close of the quarter at a high-
Dear    Mr.       Calvert:                        er rate.

              We refer       to your   recent   letter   from   which we quote:

             “Section 1 (a) of Article  XIV, House Bill No. 8,
       Chapter 184, Acts of the 47th Legislature      codified as
       Article  7066b of Vernon’s     Annotated Civil Statutes of
       Texas, reads as follows:

              l‘Each individual,   partnership,     company, associa-
       tion, or corporation    doing business      as a “motor   bus
       company” as defined in Chapter 270, Acts Regular Ses-
       sion of the Fortieth Legislature,       as amended by the Acts
       of 1929, First Called Session of the Forty-first         Legis-
       lature, Chapter 78, or as “motor carrier”          or *contract
       carrier”    as defined in Chapter 277, Acts Regular Session
       of the Forty-second     Legislature,     over and by use of the
       public highways of this State, shall make quarterly          on
       the first day of January, April,      July, and October of each
       year, a report to the-Comptroller,         under oath, of the in-
       dividual, partnership,     company, association,      or corpora-
       tion by its president,    treasurer,   or secretary,    showing
       the gross amount received        from intrastate    business   done
       within this State in the payment of charges         for trans-
       porting persons for compensation          and any freight or com-
       modity for hire, or from other sources          of revenue .re-
       ceived from intrastate business        within this State during
Hon. Robert   S. Calvert.   Page   2   (V-1247)



    the quarter next preceding.      Said individual, partner-
    ship, company. association,      br corporation     at the time
    of making said reports,     shall pay to the State Treasurer
    an occupation tax for the quarter beginning on said date
    equal to two and two-tenths       2.2 per cent’of said gross
    receipts,  as shown by said report.       Provided,    however,
    carriers   of persons or property who are required to
    pay an intangible assets tax under the laws of this State,
    are hereby exempted from the provisions          of this Arti-
    cle of this. Act.’ (Underscoring    ours)

         *House Bill 3. of the First Called Session of the
    Slst Legislature levied an additional  10% tax making the
    overall rate 2.42% of the gross receipts.

         ‘House Bill No. 285 of the Stnd Legislature.          Sec-
    tion XIB amends Article XIV as follows:

          * ‘Section 1 (a) of Article XIV of kouse Bill No. 8.
    Chapter 184. Acts; Forty-seventh      Legislature.  which is
    codified as Article    7066b of Vernon’s’ Annotated Civil
    Statutes of Texas, is hereby amended, so as to here-
    after read ,as follows: :

          * ’ “Section 1 (a) Each individual.    partnership,    com-
    pany, association,     or corporation   doing business as a
    ‘motor bus company’ as defined in Chapter 270. Acts,
    Regular Session of the Fortieth Legislature,,          as amended
    by the Acts of 1929, First Called Session of the Forty-
    first Legislature,    Chapter 78, or as ‘motor carrier’          or
    ‘contract carrier’     as defined’ in Chapter 277, Acts, Reg-
    ular Session of the Forty-second        Legislature,     over and
    by use of the public highways of this State, shall make
    quarterly    on the first days of January, April, July, and
    October of each year, a report to the Comptroller,             un-
    der oath. of the individual, partnership,        company, as-
    sociation, or corporation      by its president,    treasurer,
    or secretary..    showing the gross amount received from
    intrastate business done within this State in the payment
    of charges for transporting      persons    for compensation
    and any freight or commodity for hire, or from other
    sources of revenue received from intrastate            business
    within this State during the quarter next preceding.
    Said individual, partnership,      company, association,        or
Hon. Robert    S. Calvert,   Page   3 (V-1247)



     corporation  at the time of making said report, shall
     pay to the State Treasurer    an occupation tax for the
     quarter next preceding   said date equal to 2.42% of
     said’gross ‘receipts, as shown by said report.     Pro-
     vided, however, carriers    of persons or property    who
     are required to pay anyintangible assets tax under the
     laws of this State, are hereby exempted from the pro-
     visions of this Article of this Act.” ‘(Underscoring
     ours.)

          *The effect of the amendment is to provide for the
     tax to be paid at the end of tbe preceding quarter in-
     stead of being paid in advance based on the preceding
     quarter’s  gross receipts.

           “Under   the present law when the taxpayer’s   re-
     port is filed, based on receipts  earned during the
     months of April, May and June. his tax will be paid
     through September     30, 1951. Inasmuch as House Bill
     285 becomes effective September      1, 1951. I will ap-
     preciate it if you will advise me on what basis tax
     should be collected.”

          As ,pointed out in your letter, the tax levied by Article
7066b. V,C.S.,   as presently ‘effective is collected in advance at
the beginning of each quarter. mnd gross receipts      as reported for
the preceding   quarter are used as a basis for the advance pay-
ment of the tax. Beginning September       1. 1951. this tax will be
paid at the end of the quarter rather than in advance, and the basis
for the tax will be the gross receipts during the quarter as shown
by the quarterly   reports.

          The tax which was paid on July 1, 1951 (based on the re-
ports for April, May and June) was an advance payment for the
quarter ending September   30, 1951. Since House Bill 285 amend-
ing Article  7066b becomes effective on September     1, 1951. it is
apparent that the month of September   falls within the payment un-
der the present Act and also within the effective date of the amend-
ment and, as a result, the Acts overlap the month of September.

            The ten per cent increase      (.22$)   in the tax levied under
Article   7066b by Article XIII of House Bill 3. Acts 51st Leg., 1st
 C.S. 1950, ch. 2, p. 10, was effective only through August 31,1951.
Subdivision    (d) of Section 1 of Article    XIII,now    codified as Article
Hon. Robert   S. Calvert,   Page   4 (V-1247)



7066c, V.C.S.,   reads   as follows:

         *This Article XIII shall cover, the period be-
    ginning with the effective date of this Section and
    terminating  August 31, 1951; and the tax to be paid
    on the report required to be filed as of July 1,195 1,
    shall be for only two-thirds  (2/3) of a quarter.”

          Since Article 7066b levied the tax of only 2.2% while
House Bill 285 amending Article    706613 levies a tax of 2.42%
upon the gross receipts of the carrier,   the question is pre-
sented by the conflict in the acts as to the rate of tax to be ap-
plied during the period from July 1. 1951, to September     30,
1951, both inclusive.

           It is manifest that the tax already levied and collected
in advance for the period July 1, 1951, through September        30,
1951. under the provisions      of Article  7066b and Article XIII,Hous
Bill 3, Acts 5lst Leg., 1st C.S. 1950. ch. 2, p. 10, is at the rate o
2.42% for the months of July and August, 1951, and 2.2% for the
month of September,       1951. If an additional tax were collected on
“the quarter next preceding”       under the provisions   of House Bill
285. it would result in the collection of a double tax for the month
of July and August at the rate of 4.84% and for the month of Sep-
tember.    1951. at the rate of 4.62%.     We do not believe that the
Legislature     intended zany such result.

          Since the tax which was payable on July 1, 1951. for the
quarter ending September     30, 1951, was at the rate of 2.2% for
the entire quarter with an additional tax of .22% for the months
of July and August, 1951, it was the manifest intention of the Leg.
islature that an additional tax of .22% should be collected upon
the pros8 receipts received bv the carrier       during the month of
Septlember. 1951. Mann v. Gulf States Utilities       Clompany, 167 S.
W.2d 557 (Tex. Civ. App. 1942, error      ref.).   This construction
insures a continuity of the additional tax of 10% imposed by Hous
Bill 3, under the provisions    of House Bill 285 from and after Sep.
tember   1, 1951, for the reasons   stated in Opinion V-1246, dated
August 21, 1951, addressed     to Hon. R. S. Calvert,    Comptroller
of Public Accounts.

                             SUMMARY

          Article   7066b, V.C.S.,     as amended   by H.B.   285,
Hon. Robert   S. Calve&   Page   5 (V-1247)



    .Acts 52nd Leg., imposes a gross receipts tax of
     .22% upon the gross amounts received by carriers
    during the month of September,   1951, which amount
    shall be reported and the tax paid thereon on October
     1, 1951.

APPROVED:                              Yours    very truly,

Everett Hutchinson                      PRICE DANIEL
Executive Assistant

Charles  D. Mathews
First Assistant

Price Daniel
                                       Attorney General




                                       BY
                                              C. K. Richards
                                                                4
Attorney General                                    Assistant

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