Hon. Robert S. Calvert Opinion No. WW-21 Comptroller of Public Accounts Capitol Station Re: Whether theatre is required Austin, Texas to pay additional tax under Subdivision 22a ofArticle 7047, Vernon’s Civil Statutes, as aresult of the area in which the theatre is located being annexed to the cityof Houston subsequent to payment of the annual tax at Dear Mr. Calvert: the beginning ofthe year.

Your letter requests an interpretation ofArticle 7047, Subdivision 22a, Vernon’s Civil Statutes, as applied to the following fact situation:A theatre located outside the city limits of Houston on January lst, 1957, paid the 1957 occupation tax levied by the aforesaid statute. On January 7, 1957, the city of Houston annexed the area including the theatre location.

Article 7047 provides: “There shall be levied.

. .an annual occupation tax, which shall be paid annually inadvance except when herein otherwise provided.

. .as follows:

. . .“

.

Subdivision 22a provides for agraduated tax on theatres ranging from Five Dollars to Seventy-five Dollars annually, depending upon the population of the city, town or village wherein they are located. Your inquiry deals with whether the theatre inquestion may operate for the remainder of theyear based upon its payment of the lower small town rate.

We think your question ,is answered inthe language of the statute providing that the tax is payable “annualty inadvance”

. Although the Statute is not specific on the subject, we understand that your Department has for many years uniformly construed the statute tomean that the year involved is the calendar year. That being true, the tax accrues at the beginning of theyear and is based upon the status ofthe theatre at that ttme. No further tax, regardless of changes during the year, would accrue until the next tax due date at the beginning ofthe following year. The StatuteHon. Robert S. Calvert, page 2 (WW-21)

contains no authorization, express or implied, for the levying of an additional tax later inthe year due to changing conditions.

InOpinion No. O-3009 this Department considered a contention that the occupation tax levied byArticle 7047A-2 et seq. on coin operated machines be construed as aquarterly tax. This would have given relief to marble table operators who contended that they were being forced topay ayear’s tax on amachine that would not last over three months. This opinion held that the tax was an annual, not aquarterly, tax, payable inadvance. The effect ofthe holding was that anevent occuring during the year, such as wearing out ofthe machines, would not alter the amount ofthe tax due for the year. We bel,ieve that our holding inthe present opinion, that the amount oftax due at the beginning ofthe year will not be altered by the subsequent annexation proceedings, is inharmony with the holding inOpinion No. o-3009. SUMMARY Article 7047, Subdivision 22a, Vernon’s Civil Statutes, levies an occupation tax on theatres payable annually inadvance. The tax is graduated, depending upon the size of the city, town or village, inwhich the theatre is located. A theatre located inan area adjacent to the city ofHouston, paying the tax on January 1, 1957, may operate for the entire year under the tax rate applicable on the date aforesaid, despite the subsequent annexation of the area inquestion to said city on January 7, 1957, resulting ina higher population bracket. Yours very truly, WILL WILSON Attorney Gene-al

APPROVED: OPINION COMMITTEE H. Grady Chandler, Chairman JAS:cs J. Arthur Sandlin