“PlHR Li oxc~E:Y GENEKAE OFTEXAS

GERALD C.MANN X-B AlTORNEY DB!xu*HAI.

Honorable George H. Sheppard Comptroller ofPublic Accounts Austin, Texas
Dear Sir: Opinion No. o-3486 ,Re: Use tax levied by Article 6, House Bill 8, Forty-seventh Lsgislature. ~
In your letter of August 12, 1941, you request the opinion of this department inresponse to three questions, viz:
"1. If owners of commercial vehicle whose resident andhome office Is inN. M.brings truck to Texas for purpose of commercial hauling for anunspecified length oftime and applies for Texas License for that purpose, ishe due to pay the 1%use tax, if so onwhat basas dowe compute same, as the truokmay be sixyears old or three months old. *2. If a resident ofN. M. andhas been aresident for either thirty daysor three years andmoves to Texas and applies for Texas lioense and thefact may be thathebought his car either, before May lst, 1941, or sinae that date, is he due topay a use tax If so onwhat bases tobe figured,

“3. If individual, firm or corporation doing business in another State such asMajor Oil Companies, brings a car into Texas either permanently or for aperiod of time and applies for Texas License, ishe due topay the 1%use tax, If so what bases are tax tobe computed on." Section 1 ofArticle 6, H. B. 8, &Tth'Leg., levies a tax upon all sales ofmotor vehicles sold in this state, the tax being 1% of the sales price. Then Section 2 thereof provides:
"Sec. 2. There ishereby levied a use tax upon every motor vehicle purchased at retail sale outside of this state and brought into this State for use upon the public highways thereof by a resident of this State orbyfirms or corporations domiciled or doingbusiness in this State. such tax shall be equal to one (1)per cent of the total consideration paid or to bepaid for said vehicle at said retail sale. The tax shallbe the obli,sationof and be paid by the- .

Honorable George H. Sheppard, Page 2, o-3486

person, fimn, or corporation operating saidmotor vehicle upon thepublic highways of this State." While the use tax is levied by Section-2 against (1) residents of this State, (2)firms in this State, and corporationsdomiciled in this State, and (3) firms and corporations doing business

itmakes no levy of the tax against an individualperson who isa non-resident of Texas, although doing business in this atate. a corporation nor a firm.For, an individual person isneither 10Tex. Warren Hdw. Co., Jur. 5’86; Bodson vs. 162 S, W. 952; our opinion No. 

### o-3545. SO far asyour first question relates to an individual person, our answer is that no use tax is due.
As respects firms and corporations our answer to such question is apartially different one. As already noted the tax is levied against a firm or corporation doing business in this State, which has purchased amotor vehicle outside the State andbrings the same into this State for use upon the public highways. This would apply to a foreign corporation or a firm domiciled outside this State. since May 1, As tovehicles purchased

19419 the effedtive date ofH. B. 8, our answer toyour first question, is that the tax isdue. as itrelates to firms and corporations, The of the tax, statute provides only onemeasure

which is oneper cent of the purchase price of the car. 'Thetaxmust be computed on that basis. We have reached the conclusion, however, thatwhen the vehicle was purchased prior toMay 1, 1941p theuse tax isnot due. We have heretofore held that Section 1, levying the tax on salesmade within the State, does not apply a,ato sales made prior to the effective date of H. B. 89 although not registered until after that time. Opfnion No. O-3495. The use tax levied in Section 2 is compensatory to the sales tax levied by Section 1. One of Its effects must be that retail ssll,ers,.

inTexas will be helped to compete upon terms of equality with retail dealers in other states who are exempt from a sales tax or any corresponding burden. Another effect, or at least another tendency, must be to avoid thedrain upon the revenues of the State, buyers not being tempted to place their orders in other states in the effort to escape payment of the tax on local sales. Similar compensating tax statutes have been sustained by thecourts, but in all suchcases that we have found where the statute was sustained the courtwas able to point out and did po!lntout and emphasize the fact that the complementary tax was fair and non-discriminatory. Henneford vs. sil-it*

Mason Co., 195 23. 

### 346, La.; 81 L, Ed. 814> 300 U.S. 577; State vs. Williamsburg Power Plant Corp. vs. City ofPope,. -

Honorable George H. Sheppard, Page 3, O-3486

New York, 7. N. Y. 5. (2) 326, aff. 20N. E. (2d) 12. See also, Vancouver Oil Co. vs.nenneford, 49 Pac. (2) 14,Wash.; Nat'1 Linen Ser. Corp. vs. state Tax Corn.,186 So. Sonneborn vs. Keeling, 67 L. Ed. 1095, 262 U. S. k78, Ala.; 50 ;Douglas Aircraft Co. vs. Johnson,,90 Pac. (2)572, Cal.; Continental Supply Co.vs. People, 88 Pac. (2)

### 488, Wyo. Theprinciple of equality would demand that thetax levied in Section 2 should not operate as to vehicles purchased prior to the effective date of the Act, since Section 1, the portion of the Act towhich Section 2 is complementary, does not apply to vehicles purchased prior to that date. we believe that Section 2 is susceptible of that construction andwe do so construe it.
We gather that your second question relates only to aprivate individual. For reasons sufficiently appearing above we answer that question in this way: if this person's Change of domicile precedes his application for the car license he will be required topay theuse tax, ifhe has purchased thevehicle on or since May 1, 1941. Ifhe is anon-resident at the time of application hemay register without paying the tax. In any event hemay register his carwithout paying the use tax, ifhe purchased itprior toMay 1, 1941. Themeasure of the tax is oneper cent of the price he paid for the car.
We presume that your third question has reference topersons resident in this State and to firms and corporations domiciled or doing business in this State. If so, the answer is: the taxwill be due as to vehicles purchased on or after May 1, 1941,but not as to those acquired before that date. In those cases where thetax is due itwill be based on the price paid for thevehicle by the applicant.
Our answer toyour fifth question in our opinion No. O-3519 had reference to individual persons only, not tofirms or corporations domiciled or doing business in this State.
Yours very truly ATTORNEY GENERAL OF TEXAS
APPROVED AUG. 22,1941 s/ Glenn R. Lewis s/Gerald C. Mann ATTORNEY GENERAL OF TEXAS 3~ Glenn R. Lewis Assistant GRL:ej/cg Approved Opinion Committee BY JHS, Chairman