c . 

~~EA~~ORNEYGENEPLAL 

OFTEXAS 

AUSTXN 11. TEXAS 

November 18, 1959 

Honorable Robert S. Calvert Opinion No. WW-73G 

Comptroller of Public Accounts 

Capitol Station Re: #ether parts for an air 

Austin 11, Texas conditioner, when bought 

arid used for repair purpose8, are taxable under 

Dear Mr a Calvert : 

A&2;+01 of X.B. 11, 

. e, 56th Leg. 

By letter dated October 14, 1959, you advised: 

“This Department requests the opinion of your 

office on the following q.1eart1or.s: 

“IS an autarwbils ir aold with an aIf COWtioner fn I: (and the tax Imposed by Art. 6.01 . 

of X.B. ll,, 3rd C.S,, 56th Leg. on such sale is 

duly paid) or IS an ai? oondltioner is sold and 

installed in an automobile ,(and ths tax imposed 

bye Art. 20.04 of W¶.d Aot on auoh sale 16 duly 

paid) and then such air oond%tioner bscomer in 

need of repair, which repair necessitates the 

replacemant of some c;e-Dectlve part, is the replacement of such dcfscttve part In connection 

with and as a necessary element of tha rffeotub-, 

Alon of such repair aervics a ‘retail sale’ 86 

&fined in Art. 20.01 of said Aot? 

“If it 1-s your opinion that such replacement 

under such clrc-~mstsn~crs is a ‘ret&l sale’ 

within %d.ch dcfinltlon, thsn your opinion is also 

requested whether, under such clrccmstances, such 

rej)~,aJ~i”~~.~>,<z,~- ‘~; ‘:, 1, 2 an : 3.j: cc,nd.itone2: wlthi.7 

the dtfl I:j,tion 037 2,rt. 20.01 ii) of said Act.” 

Und,er the authority of Attorney General’s Opinion 

No. WW-6c,6 (April 2Ll, 1.959) i,t .‘Ls apparent that parts lnstalled i.:~ t.he cource of repair of an e9.r conditioner and 

billed to the owner thEreof (whether such ‘>iill,ng segregates 

ohargee far services and parts or includ~es Ghem in one total) 

arei the subject of a “sale.” However, because of the view 

taken of the second c,uestlon which you propound, this point 

ir rendered moot. 
Hon. Robert.. S. Calvert, Page 2 (Opinion No. WW-734) . . . . 

.’ 

The pertinent pertinent portions portions of the titie to House Bill 3.1. 

state that it Is “an act. . .levylng .levylng certain certain new and addi-+:. addi-+:. :: 

tional taxes for support support of the State Government Government including including 

excise taxes on. . .air conditioners. conditioners. . .” Article 20.04 of 

House Bill 11 states; 

“There is hereby levied and shall be imposed 

upon the sale, distribution or use of air conditioners in this State an excise tax equivalent to 

three per cent (3%) of the retail price for which 

such air conditioners are sold,” 

..-- - 

(Emphasis added) 

Although Chapter 20 of House Bill 11, in which the 

excise tax on air conditioners is set forth, specifically 

taxes component parts of radios, television, sets or phono-’ 

graphs, there is no comparable tax levied upon component parts 

of air conditioners. In view of this, It olearly appears that 

it was not the legislative lnten t to levy the excise tax upon 

component parts of air co,ndit.loners sold for the purpose of 

repair. This conclusion 1,s fortified by, the canon of statutory construction that all questions ooncerning, whether a revenue measure extends to narticular objects are to t’e. strictlv 

‘construed against imposition of the tax a.nd Ian favor of .the - 

taxpayer. State V: San Patricia, Cannrn.g Co., 17 S.W,2d 160’ 

(Tex.Civ.App. 1929 t hl’atory); ,Western Pu.bl’i,c Servic,e 

Co, v. Meharg, 116’T%w$3, ‘~292 &WI lb6 (lYZ( )” Southerland ” 

Statutory Construction (2nd BtL), page 293, Ch. $7, Sec.. b701- 

and see Attommy General’s Opirdon No, W-fi34 (September 2, ’ 

1959): 

A minute examination eb the .definition of .“a%rconditioner” contaIned In Article’ 20.01 ,of Chapter 20 of House Bill 

11, 3rd Co&, 56th Leg., verifies the foregoing conclusion. 

Th,e first portion of such definition state,8 that “air’ c’onditionars” shall mean any self-contained unit, apparatus, device, 

commonly knowni sold and used as an airy conditioner. This, 

language merely Is declarafory~ of the intent to levy the tax 

upon, div;lces,.~known, sold or used as air conditioner& The’::. 

definition then proceeds to state ‘&at the term air conditi&er 

“shall include’ any Instrument, ,apparatus, or mechanical con’t;ri- 

‘Vance -desIgned, constructed, or assembled as part of .any s&h 

self-oontained unit, apparatus, or -device to cool or ,assist in 

the cooling of air In any manner.” This Language does hot 

extend, f&e. ioope of the tax to inG.ude gar’t%t@dtslJ.e@ .%n air 

condltlbnetis during the course of repair. Iii vlew,.bf the legislativk intent ‘and the canon, of statutory: construct$on dfscusse~dabore, this language c,an only be ;construed to, include 

all instruinents,, ‘apparatus or contrivazxes which are designed 

for use ln,,~dr’ constructed,@ assembled as part ofj an original 

tqxablk :unif:, 
Hon. Robert S. Calvert,’ Page 3 (Opinio:? No. W&T?&) 

The second sentence of the definition of the term air 

conditioner states: 

II 

. . The term ‘air conditioner’ shall also 

irklude all sub-assembl.les, devices or instruments commonly used In conjunction with any 

such other apparatus, device, sub-assembly or 

Instrument, which when combin,ed or connected 

as a functioning self-contained unit, apparatus 

or deyice will constitute an air conditioner. 

. . . 

This language does not enlarge the scope of the tax so as to 

tax other than air conditioners as that term Is defined. 

Though the language used is broad, specifying sub-assemblies, 

devices, etc., It is limited by the phrase “which when combined or connected as a functioning self-contained unit.” 

The tax is still levied only upon %he air conditioner. ObVlously the language in the second sentence was included for 

one purpose, i.e. to avoid fraud and evasion of the tax by 

sales of separate pa.--ts of air COl?ditiOr.erS with a subsequent 

assembly thereof e.s an orlginnl taxable aiz conditioning unit. 

Parts sold for s;lch purpose are taxable, but the definition 

of “air conditlo?er” Ij affords no basis upon which to tax replacement parts or par~ts Installed in a!.r conditioners during 

the course of repair.1 

In summary you are advIsed that a3.1 de-~ioes, assemblltis, sub-assemblies, etc., designed or sold for orlgklal 

installation or assem3ly’ as a3 air co;:diti?::er are taxable, 

but that parts sold or installed fo? the purpose or during 

the course of repair are not taxable. 

language is not in conflici: with i-:5& oplr.ior, expressed 

aDove. It wa7 inci2ded ir? Opilslion No, WW-53G only to iiI23- 

trate the proposition that a11 devlczs, sub-assemblies, 

etc., sold or designed for origkal i>stal?afion or assembly’ 

as an air cord.itioner would be taxable. 
Hon. Robert S., Calvert, Page 4 (Opinion No. ww-734j’ 

SUMMARY 

Parts for a~r:.~coaditio~etis when ,~.. 

bought and used for repair purposes are 

not taxable under Article 20.01 of H.B. 

11, 3rd C.S., 56th Leg. 

, Yours very truly, 

WILL WILSON 

Attorney General, 

JNP:b<t 

APPROVED::' 

OPINION COMMITTEE: 

John Reeves, Chairman 

Robert T. Lewis 

J. Arthur Sandlin 

Robert G. Scofield 

RE'JIEWED FOR T;-IE ATTOtiEY GENERAL: 

By: W. V. Geppert