### THEA~O~~EY GENERAL OFTEXAS
GERALD Co MANN AUSTXN 1,.TEXCAS

Honorable George ?I.Sheppard Comptroller of PublicAccounts 5t?zzaz

Austin, Texas Dear Sir: OpinionNo. 

### O-3637 Re: Authority of Comptroller~topermit a transfer of the chain store license Issued to a utility store operating in a town of less thank threethousand '(3,000)Ynhabltants to a store In a citg'havinga population of more than three thousand (3,000), in vlew~of the amendment to Article 7060, Revised Civil Statutes. From your letter of June 4, 1941, and attached data we gather the following facts:

'A certain utilities company operating stores in several towns of less than three thousand (3,000), Inhabitants,timely paid the fees fixed In Section 5a of Article lllld,Vernon's Annotated Penal Code, obta'lnlng

licenses to operateduring the year 1941 In said respective towns. Article 7060, Revised Civil Statutes levies a gross receipts tax, or occupation tax measured by gross receipts, on certain utlllties. That statutewas amended by Article 

### 5 InHouse Bill No. 

### 8, Forty-seventhLegislature, effe!ctive May 1 of this year. Said Article 

### 5 of House Bill 8 contains~ the followingparagraph:

Art "Andprovided further that utllltles paging an occupation tax under this Artlcle'shallnot hereafter be required to pay the license fee imposed In Article 5a, House Bill No. 

### 18,Chapter 400,Acts of Fortg;fourth Legislature, for the privilege of selllng~gas and electric appliances and parts for the .repalrsthereof,'Fn tolrns of three thousand (3,000) or less in population according to the next preceding Federal Census."

Said utllitles company pays the tax leviedby sald~ iicle

### 7060 on the stores thus operated In said towns of lessHonorable George H. Sheppard, page 2 

### o-3637

than three thousand (3,000)population. Hence as to suctistores theutilities companymay not hereafterbe required to p&g the license fee fijiediLn Sectlon 5 of saidArticle 11116; Said utilities company has requestedyou~'to permjt the transfer of the licenses thus Issued for the year 1941 to-the storks oper- &tlngTn towns of less thiuithree thtius&na'(3',000) Inhabitants to.stores In cl'tles ~ofpopUl.%tlWtiore'thafi 'threethousariV 

### (~3,000).

The tax on such-'itores'~Qas.'pald prior to the enact-' i&&t of H&se Bill No; '8and we are-'adviaed,that the stdr8s'ln tieid towns of less than three thousand~(3,,000)~'inhabit~nts'wlll contlinie

to opepate. You request our opinion-'ah tb whether the Comptroller Is authorized to permit such a transfer.
.,, -,T'he net result of allowing sucK'a tiiansfer Would be to refund a'part of the 1941 chain store tax paid bn'these" stoi%s operating in towns of less than three thbutiana(3;OOO) inhtibltants.The statuttis howhere provide for such~ a transfer dr refund. The quoted part o'f Article 

### 5, R.B. 

### 8’; merely ~POvides that the utilities company"""shall not hereafterbe r6;' qulred to pay" the.'chain store tax~bn these particular stbi-es. W&do not believe an lhtentlon to make's r&fund, even"thotigh iiiddirectlg',

can"b6'gleaned from this language. The tax for'1941 had been paid, a'fact known tb the Legislature. Had it been -'. ileslred

to make a refund, 6r allow aiiy pabt of such paymgnts as a'credltupon other taxes accruing, apt language could have been found-easily to evidence such Intent. Our answer to your question Is a negatlve one.
. Yours very truly ATTORNEY GENERAL OF TEXAS
By s/GlennR. Lewis Glenn R. Lewis Assistant GRL:db:wc APPROVED JUN 14, 1941 s/GroverSellers FIRST ASSISTANT ATTORNEX GENERAL Approved Opinion CommitteeBy s/BWB Chairman