### THEAYTORNEY 

### GENERAL OPI‘EXAS

WILL WILSON November 25, 

### 1959

Honorable Robert S. Calvert OpinionNo. 

### WW-745 Comptroller of PublicAccounts Capltol Station Re: Taxability of r~sic coinAustin, Texas operatedmachines, or juke boxes,under Chp. 20, H.B. 11, 3rd C.S., 56th Leg. Dear Mr. Calvert:

You request the opinion of this officeupon whether or not music coin-operatedmachines, commonly known as juke boxes, should be includedwithin the definition of "phonographs"under Art. 20.01(g), H.B. 11, 3rd C.S., 56th Leg., and taxed as such.

Chapter 20 of H.B. 11 imposesmiscellaneous Art. 20.01(g) defines "phonographs"as excise taxes.

I,

...... the apparatus or devices, either mechanical or electrical, commonly known and sold as phonographs, including record players, hlghfidelity phonographs and stereophonicphonographs, and shall also include all sub-assemblies,devices or Instrumentsdeslgned for the reproduction of sound from tuning devices, recordings of tape, records of wire; devices designed for the amplification of sound received or reproduced by such devices; or one or more devices designed to be used in conjunctionwith other devices which when combined will constitute a device defined as a phonographunder this Chapter." A tax of 

### 3%upon the sale, distribution, or use of such phonographs is imposed by Art. 20.02.

It is our opinion that music coin-operatedmachines, or jukeboxes, are not includiblewithin this definition and hence not taxableunder these articles.

Chapter 

### 13 of this same tax Act imposes an occupaf;g;i:ax upon the I'owner" or 'operator'of coin-operatedmachines. coin-operatedmachines by Art. 13.01 (3), are specifically includedwithin this group and that term is defined inArt. 13.01 (4) as

.....everycoin-operatedmachine of anyHonorable Robert S. Calvert, page 2 

### m-745

kind or character, which dispenses or vends or which is used or operated for dispensing or vending music and which is operated by or with coins or metal slugs, tokens or checks. The following are expressly includedwithin said term: phonographs, pianos, graphophones, radios, and all other coin-operatedmachines which dispense or vend music." Thus, phonographs are specifically included as a type of coin-operatedmachine to be taxedunder Chapter 

### 13,but no mention is made of coin-operatedmachines under the definition of "phonographs"in Chapter 20. The Legislaturewould presumably not have so precisely taxed such machinesunder one chapter, then have left such coverageunder a later chapter to mere inference. This would seem particularly true inasmuch as the excise tax on phonographs (Chapter 20) is a new revenue measure with this tax bill, and hence should clearly cover those articles subject to it, whereas the tax on coin-operatedmachines was, in substance, carrled over from previous tax statutes. See Art. 7047a-2 et seq., V.C.S. Moreover, the definition In Chapter 20 taxes only those machines "commonlyknown and sold as phonographs." M.~siccoinoperatedmachines are commonly known and sold by that name or as Itjuke boxes," not phonographs. Should the legislative intent behind the statutebe deemed so unclear as to make construction necessary, Koy v. Schneider, 110 Tex. 

### 369. 221 S.W. 880 (1920)resort to rules or canons of construc- -_ tion is appropriate. Johnson v. FerRuson, 

### 55 S.W. 

### 2d 153 (1932), error dism'd. One such canon is that taxing acts must be construed strictly against the taxing authority and liberally in favor of the taxpayer, where the question Involved is whether or not a certain person or thing is includedwithin its scope. Philtex Chemical Comuans v. Sheooard, 219 S.W. 2d 1010 (1949), err. ref. n.r.e.; Texas Unemployment CompensationCommission v. Bass, 

### 137 ;I%;.1, 

### 151 S.WS 2d 567, aff'g. Carpenter v. Bass, 142 S.W. 2d State v. an Patriclo Canning Co., 

### 17 S.W. 2d 160 (1929),. Appiying this rule we would again reach the conclusion that such rm*siccoin-operatedmachines, or jukeboxes, are not "phonograph# under Art. 20.01(g),H.B. 11, and hence not subject to the excise tax imposedby that Chapter. SUMMARY Music coin-operatedmachines, commonly known as jukeboxes, are not "phonographs"within the definition given in Art. 20.01(g), H.B.. .-c

Honorable Robert S. Calvert, page 3 m-745

11, 3rd C.S., 56th Leg., and hence not taxable as such. Yours very truly, WILL WILSON Attorney General of Texas
By s/JamesR. Irion James R. Irion Assistant
JRI:cm:wc APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman Jack Goodman IolaWilcox Gordon C. Cass REVIEWED FOR THE ATTORNEY GENERAL BY: LEONARD PASSMORE