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                 THE            A            NEYGENERAL
                                      OFTEXAS



                                      December    8, 1950


        Hon. Robert S. Calvert                   Dpinion No. V-l         129
        Comptroller   of Public Accounts
        Austin, Texas                            Re:    Application   of the annual
                                                        shooting gallery tax to shoot-
                                                        ing galleries   operated in
        Dear   Mr.   Calvert:                           connection with carnivals.

                       You request    the opinion of this office upon the questions
        presented    in your letter   of October 27, 1950, as follows:

                      “Article 7047, Subydivision 35, as amended,                 lev-
               ies an annual State Tax on Shooting Galleries.

                        ‘“Article 7047, Sub-divisibn   25(b),     as amended,
               levies    a quarterly tax on carnivals.

                      “A ruling by this Department has held that a shoot-
               ing gallery operated in connection with a carnival is not
               covered by the carnival tax but owes the separate tax as
               a shooting gallery.

                      “Some of our field men, whose duty is to collect
               this tax, are of the opinion that a shooting gallery oper-
               ating in connection with a carnival is covered by the
               carnival tax and does not owe the shooting gallery tax.

                       “‘In view of the conflicting opinions on this mat-
               ter I would appreciate     your advising   me whether the
               quarterly tax paid by a carnival would cover a shooting
               gallery,    or whether the shooting gallery would pay the
               separate tax.

                      ‘“Would your answer be the same if the shooting
               gallery was owned by the carnival owner or if it was
               not owned by the carnival but operating with the carni-
               val on a concession  basis? ”

                        Subdivision   35 of Article    7047,   V.C.S.,   reads:

                      “‘From every person, firm, association    of persons,
               or corporation,  owning, or operating a shooting gallery
               at which a fee is paid or demanded, there shall be col-
               lected an annual tax of Fifteen Dollars  ($15):’
Hon. Robert    S. Calvert,   Page 2 (V-1129)                                       -,.




              Subdivision    25(b) of Article   7047 is as follows:

              “From every carnival showing or exhibiting in
       this State, there shall be collected    in advance a quar-
       terly tax of Fifty Dollars ($50); provided that from
       every carnival showing or exhibiting in only one coun-
       ty in this State in any calendar year there shall be col-
       lected in advance the quarterly tax of Fifty Dollars
       ($50) until One Hundred Dollars      ($100) has been paid,
       whereupon no additional tax shall be collected     during
       the same calendar year so long as such carnival has
       shown in only one county during such calendar year; it
       being the purpose hereof to require carnivals      showing
       in only one county in any calendar year to pay not more
       than One Hundred Dollars ($100) per year.”

             It is significant  to note the language employed by the
Legislature   in these taxing statutes.   By express  language the shoot-
ing gallery tax is collected from every person, firm, association
of persons,  or corporation    owning or operating a shooting gallery
at which a fee is paid or demanded, and the carnival tax is collect-
ed from every carnival showing or exhibiting in this State.

              The term “carnival”       has an extended signification,     and
comprehends     a variety of amusements.        As defined by Webster’s
New International     Dictionery    (2nd Ed. 1938) it means “an amuse-
ment enterprise     consisting    of sideshows,  vaudeville,  games of chance,
merry-go-rounds,       etc.; also, an association   for conducting such an
enterprise.”    It may be conceded that its signification      is broad e-
nough to cover exhibitions       of every kind and character    from which
amusement     is derived, including a shooting gallery.       A shooting gal-
lery likewise has a well understood and distinct meaning in its com-
mon acceptation and is defined by the same edition of Webster’s              New
International   Dictionary as “a range, usually covered, with targets
for practice with firearms.       ” A carnival may be complete in all par-
ticulars under the foregoing definition without a shooting gallery.
Conversely,    a shooting gallery may, and often does, operate inde-
pendentPy and without any connection whatsoever           with a carnival.

             In the enactment of the above statutory provisions      per-
taining to shooting galleries   and carnivals,    the Legislature was priv-
ileged to make this classification    and render both subject to taxation.
They both may be reasonably      classified   as places of popular amuse-
ment distinct and separate from each other, although a shooting gal-
lery may be one of the attractions      of a carnival.

               The State occupation tax was first imposed on shooting
galleries   in 1897, and on carnivals  in 1915.  The Legislature last
amended     both Subdivision 25(b) and Subdivision 35 of Article 7047
Hon. Robert   S. Calvert,   Page   3 (V-1129)




in 1943, in the same amendatory       act (Acts 48th Leg., 1943, ch. 372,
p* 654),    There is nothing in this act or any prior acts to indicate
a legislative   intent to exempt shooting galleries   if operated in con-
nection with a carnival.     In the absence of such a legislative  intent,
either expressed     or implied, we think the ruling of your Depart-
ment is correct and both are subject to tax.

            Our ruling would be the same whether the shooting gal-
lery was owned by the carnival owner or by someone else, and
whether it was operated by the carnival or on a concession basis.


                              SUMMARY

            A shooting gallery operated in conjunction with
      a carnival,  either through ownership by the carnival
      or on,a concession   basis, is subject to the tax imposed
      by Subdivision 35 of Article   7047, V.C.S.

                                                 Very    truly   yours,

                                                  PRICE DANIEL
                                                 Attorney General


APPROVED:                                        By     ti*
                                                        L. P. Lollar
W. V. Geppert                                              Assistant
Taxation Division

Everett Hutchinson
Executive Assistant

Charles D. Mathews
First Assistant
