June 22, 1959

HonorableRobert S. Calvert OpinionNO. W-649 Comptroller of Public Accounts Capitol Station Re: Questionsrelating Austin, Texas to circus occupation tax. Article 7047. Subdivision 24, Series 124-135,V.C.S., incluDear Mr. Calvert: sive.

We quote the following from your opinion request:
"Thequestions involving liability arises from a circusbeing advertised to perform in Texas on six successivedays, the services of which have been purchased by a grocerymerchandising concernwho, in turn, for the purpose of being remunerated,requires themeans of admission to be sales slips evidencingpurchase of $35.00 (thirty-fivedollars) of merchandise from said sponsor. Such evidence is required of each person desirous of admittance.

"Youropinion as to whether the Occupation Tax Receipt is required of the circusunder such conditions is requested, if your answer is In the affirmative, is the grocery concern

of the circus, liable for the or the owners tax receipt."
The pertinentprovisions of Article 7047, Section 24,,are as follows:

"Circusand Shows.--Prom every person, firm,

. .... association of persons or corporationexnlolting performances such as a circus,menagerie, wild west show, dog and/or pony show or show wherein broncho busting, rough riding, equestrian, or acrobatic feats are performed, or any other show, exhibition or performance similar thereto, or any combination feats are performed, or any combination of any of the foregoing, for which admission fee is demanded or received for each day or part thereof on which performances or exhibitions are given, the following amount, respectively:

. . . .Hon. Robert S. Calvert,page 2 (OpinionNo. m-649)

I, .Every show or exhibitionwhich advertises itself as being any of those described in this Section shallbe held to be such for the purpose of levying and collecting the occupation tax herein provided;provided, however, that the tax levied herein shallnot apply to any show, circus or exhibitionnot operated for private gain and the earnings and assets thereof are devoted solely and exclusively to charitable,benevolent, religious or educationalpurposes.'
You have furnished us additional informationto the effect that the circus is advertised in the name of the owner, which is its customaryname, and that such advertisingrepresents that the circus is being "presented"by the grocery concern. You further informedus that the grocery concernpurchased a stipulatedrnznber of performances in specified cities, but did not gain the right to control themethod of performance, or the right to require additionalperformances, or the right to exercise control over individualperformers. It is apparent therefore, that the grocery concernpurchased only the exclusive right to admission to a specifiednumber of performances, and is not exhibiting the circus. Consequently,you are advised that the circusmeets the requirement of the taxing act in that it advertises itself as a circus and receive admission fees for each day or part thereof for which performances are given, and that the owner thereof is liable for the tax.
SUMMARY

A circuswhich is advertisedas being presented by a grocerymerchandising concern is liable for the occupation tax imposedby Article 7047, Section 24. The owner of such circus is required to pay the tax.
Yours very truly,

WILL WILSON Attorney General of Texas
JNP:cm By:w APPROVED: Assistant OPINION COMMITTEE: Geo. P. Blackburn, Chairman

L. P. Lollar Robert T. Lewis Wallace Finfrock Thomas Burrus
REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. GEPPERT