### THEA~ORNEY GENERAL OFTEXAS

Honorable George H. Sheppard Comptroller of PublicAccounts Austin, Texas
Dear Sir: OpinionNo. O-2776 Re: Are nurseries which maintain places of business for the sale of trees, plants, etc. from which places of business such commodities are sold subject to thepayment of the Texas chain store tax?
We are in receipt of your letter of October 21, 1940, In which you request the opinion of this department as to whethe or not a nursery which maintains a place of business for the sale of trees,plants, etc. and fromwhich place of busIness such commodities are in fact sold is subject to the chain store tax. As we understand the facts submitted, the establishment in question is a building inwhich a numberof trees, plants and shrubs, etc. are kept and exhibited for sale to the public although some of such commoditiesare also sold from the fieldswhere raised. The Legislature of Texas has defined the term "store" in the Texas Store Tax Act (Act, lllld of Vernon's Annotated Penal Code) as follows:

'Sec. 

### 7. The term 'store' as used In this Act shallbe construed to mean and Includeany store or stores or any mercantile establishment or establishmentsnot specificallyexemptedwlthin this Act which are owned, operated,maintained, or controlledby the same person, agent, receiver, trustee, firm, corporation, copartnershipor association,eitherdomestic or foreign, Inwhich goods, wares or merchandise of any kind are sold, at retail or wholesale,"
In commenting on saiddefinltion of the term "store" the Commission of Appeals of Texas in the case of Hurt v. Cooper, 110 S.W. (2) 896, statedas follows:

" The statutehaving defined the word, we are not concernedwith itsusual meaning. underHon. George H. Sheppard, page 2 o

### -2776

that definition a mercantile establishmentat which goods, wares, or merchandise of any kKd, except those exempted,are soid is a store and is taxable as such, ana this even though itma also be a distributingpoint." (Emphasisours 7 We are unable to find any case either In this State or inany state in the United States inwhich the court has passed on the question of whether or not a nursery establishment is subject to the payment of a chain store tax as being a store or mercantile establishment. However, the Supreme Court of Illinois in the case of Swain Nelson and Sons Company v, Department of Finance, 

### 6N.E. (2)

### 632, in construing the'tax of that state levied on the retail sales of tangible personal property stated as follows:

"Aportion of appellant'sbusiness embraces sales of trees and shrubs to customers,with delivery either at appellant'spremises or at suchplaces as may be designatedby the purchaser, Tax liability on such sales is admitted and Is not here involved." The Commission ofAppeals of Texas in the case of Continental PaperBag Companyv. Bosworth, 

### 276S.W. 170 statedas follows:
"InAmerican usage, the word 'store,'when employed to designate a place of business, is a broad one. It signifiesnot merely a warehouse, storehouse or storeroom,but may include in itsmeaning a business establishmentwhere personaltg is kept and sold, and incidentally gotten in salable condition." The term "mercantileestablishment"is defined in 21 C, J, 904 as follows:

"Aplacewhere the buying and selling of articles of merchandise as an employment is conducted,
It **IS** the opinion of this department that a place of business established for the sale of trees, plants, etc. from which place of business such commocli.ties are sold Is a "store" as that term is defined in the Texas Chain Store Act, supra, and such-placeof business is subject to the payment of’ the chain store tax.

We call your attention to the fact that the AttorneysHon. George PI,Sheppard,page 3 o-2776

General of two other states have ruled on this same question that you present here. The Attorney General of Indiana in an opinion to the state tax commissionerdatedDecember 18, 1931, ruled as follows:

"Nurseries: Selling trees,plants and vines.-- If suchnurseries maintain a place for the sale and are engaged in the business of selling trees, plants and vineswhich havebeen severed from the place where grown, it is my opinion that suchnurseries comewithin the definition of a mercantile establishmentand are engaged in the sale of goods, wares and merchandise and are liable for the payment of such license fees." The Attorney General of Colorado ruled as follows: "Nurseries--Sellingtrees, plants and vFnes.-- If suchnurseriesmaintain a place for the sale of and are engaged in the business of selling trees, plants and vines,which have been severed from the placewhere grown, it is this department's opinion that suchnursery could come within the definition of a mercantile establishmentengaged in the sale of goods, wares and merchandise, and therefore liable for a store license."
We believe that the Attorney Generals of Colorado and Indianahave correctly construed chain store tax legislation similar to our law in applying the same to the type of nursery discussed therein, It is our opinion that such a place of business as in the facts submitted is subject to the payment of the Texas chain store tax,
Yours very truly
ATTORNEY GENERAL OF TEXAS

By s/BillyGoldberg Billy Goldberg -Assistant
BG:rw:wc APPROVH) NOV 4, 1940 s/Gerald C, Mann ATTORNEY GENERAL OF TEXAS Approved Opinion CommitteeBy s/BWB Chairman