Honorable George H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir:                        Opinion   No,   O-4128
                                 Re: Construction of Article
                                 VI, House Bill 8, 47th
                                 Legislature.
We acknowledge receipt of your request for an opinion, which
request reads in part.as follow:
     "We have received a letter from the Mid-Tex Motors,
     Inc., two~paragraphs of which read as follows:
     It1We sold a Mr. C. H. Ruebeck of Waco-a new car,
     and took a straight note on the car with no mortgage.
     This notewas ~~onlyto,run thirty days, so for that
     reasbu, we~wtited the title on the car‘ln our name
     until the note was paid, as it involved the sum.of one
     thousand dollars.
     II1Thls~car ,was never driven or operated by us. We
     registered it in our name and paid ,the 1% tax,
     furnished by Mr. Ruebeck, and as he has now paid
     off the note,.we are ,trylngto transfer it to him."'
We have also been advised that the Tax Collector refuses to
accept a transfer to Mr. C. H. Ruebeck until the tax Is paid'
on such transfer. We have also been furnished with a~photostatlc
copy of the registration receipt and tax receipt.,
The registration receipt and the tax receipt revealed that the
automobile in question waspurchased by Mid-Tex Motors:Section
                    of House Bill 8, 47th Legislature, provides
1 (a) of Article 713:
as folows:                                 .'~

     'Section 1. (a) There is hereby levied a tax upon every
     retail sale of every motor vehicle sold in this State,
     such tax to be equal to one (1) per cent of the total
     consideration paid or to be paid to the seller by the
     buyer, which consideration shtil include the amount paid
     or to be $'aidfor such mototivehicle atidall accessories
Honorable George H. Sheppard, Page 2   O-4128


     attached thereto at the time of the sale, whether such
     consideration be in the nature of cash, credit, or
     exchange of other property, or a combination of these.
     In the event the consideration received by the seller
     includes any tax imposed by the Federal ffovernment,
     then such Federal tax shall be deducted from such
     consideration for the purpose of computing the amount of
     tax levied by this Article upon such retail sale."
It will be noted that the tax is levied on every "retail sale"
of every motor vehicle sold In this State. Subsection(b) of
Section 3, Article VI. House Bill 8, supra, defines "retail
salean as being all sales except those whereby the purchaser
acquires a motor vehicle for the exclusive puroose of resale
and not for use.
Section 5 (a) of House Bill 8, supra, provides that .at the time
the tax is paid the purchaser shall file with the Tax Collector
an affidavit setting forth the total consideration and Section
VI of House Bill 8, supra, provides that the Tax Collector shall
issue totheperson paying the tax his receipt therefor.
As above stated the registration receipt and the tax receipt both
reveal that the purchaser was the Mid-Tex Motors. In view of the
fact that the law requires an affidavit be filed by the purchaser
we must assume that the.Tax Collector complied with that requirement
of law'and that the tax receipt issued was based upon such';affidavit.
Therefore, insofar as the payment of the tax Is concerned the
record of the transaction reveals that Mid-Tex Motors was the
purchaser and that it paid the tax as such purchaser.
We realize that the sale was made in good faith but that for some
reason best knownto itself Mid-Tex Motors chose to not disclose
all of the facts in regard to the sale of the motor vehicle to
the Tax Collector. The law requires that the tax be paid before
the vehicle can be registered or transferred. The Mid-Tex Motors
presented the affidavit as required by law and thereupon the Tax
Collector performed the duty placed upon him by law on what the
record before him disclosed and received the tax and Issued the
receipt.
After Mr. Ruebeck paid his noteto Mid-Tex Motors it issued him
a transfer and the Tax Collector refused to accept it unless the
tax was paid. Section 5, House Bill 8, supra, expressly prohibits
the Tax Collector from accepting the transfer unless the tax is
paid. In this case the tax was paid upon a transfer or sale of the
motor vehicle from Mid-Tex Motors to itself and no tax has been
paid on the sale of the motor vehicle from Mid-Tex Motors to
Mr. Ruebeck.
Honorable George H. Sheppard Page 3 O-4128


We are therefore of the opinion that the tax must be paid on
the transfer from Mid-Tex Motors to Mr. Ruebeck and that the Tax
Collector is not authorized by law to accept such transfer until
the tax is paid.
You have advised us that the money to pay the tax was furnished
by Mr. Ruebeck. We think that the source of the money is
immaterial because the record did not disclose that he was
the purchaser.
We do not Imply by this opinion that any Intentional wrong
was done by Mid-Tex Motors and realize that it chose the
course it took t'oprotect Itself on the unpaid balance. The
agreement to handle the sale, registration and payment of the
tax in such manner was made by the motor company and Mr. Ruebeck
and they must be bound by the consequences.

                                Yours very truly

                          AT!PORNJ3YGENERALOF!fEXAS
                          a/ Richard H. Cocke

                          By
                               Richard H. Cocke
                                     Assistant
RHC:db:ldw
APPROVED JAN 2, 1942
a/ Gerald C. Mann
ATl!ORNRYGRNRRALOFTRXAS
APPROVED
OPINION
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