### wHEAimoRN~~ GENERAL
OF-TEXAS

Honorable Geo. H. Sheppard Comptroller of Public Accounts Austin, Texas

Dear Sir: Opinion No. O-1237 Re: Whether under given facts situat,ion twenty per cent prize tax is due' under Article 70&7f, R. C. S.

We are in receipt of your letter of August 4, 1939,wherein you outline three fact situations,as follows:
1. The owner of a place of business displays a jar of beans in his storeand people entering such place of business are invited to guess at the number of beans in the jar. Anyone is eligible to participate in the guessing contest,and the one who guesses closest to the number of beans in the jar will receive the prizewhich is given away in connectionwith the contestwhether he is or has been a customerof the store or not.
2. The owner of a storehas printed duplicatenumbered tickets and peoplewho enter the store are given one of such tickets. He drops one number in a container and retains the other. Later a drawing is held and the person holding the number which correspondsto that drawn from the container receives the award. No charge ismade for the ticket,and anyone entering may participateand receive the award whether he is or ever has been a customerof the store. A personmay not receive the award unless he is in the store at the time of the drawing.
3. The proprietorof a motion picture theatre keeps a ledger in which anyonemay signhis name without lost to him and regardless of whether he purchases or ever has purchased a ticket from the theatre. On each Thursday thedrawing takes place and the theatre is closed and not in operationand is open to all alike, to which drawing there is no admission charge. A personmay be present at the theatreat the time of the drawingand if his name is the onedrawn then hewill receive the prize, or any person whosename has been signed may go by the office of the theatre at any time Thursdayand request that he be representedbats the drawing, in which eventHonorableGeo. H. Sheppard,page 2 O-1237

he is listed as being eligible for the prize and in such event if his name is drawn, he will receivethe prize whether he is present or not. If the personwhose name is drawn is not present or has not been so listed as being eligible for the prize then the drawing is carried over to the next week and so continues until the name of someperson present or eligible is drawn.

You request our opinion as to whether the twent prize tax levied by Article 7047f,Revised Civi18 er cent gift or tatutes, is due upon the prizes given away under the above three fact situations. SaidArticle 7047f reads, in part as follows: "(a) Every person, firm, or corporationconductinga theatre, place of amusement, or any business enterprise in connection with the operation of which a prize in the form ofmoney or somethingof,value is offered or given to one or more patrons of such theatre,place of amusement, or business enterprise, and not given to all patrons thereofpaying the same charge for any certain service, 'commodity,or entertainment, shall make averified monthly report on the twenty-fifthday of each month to the Comptrollerof PublicAccounts of the State of Texas, showing the amount of money so given inprizes, and the value of all prizes or awards so given in connectionwith suchbusiness during the next precedingmonth. '*(b) There is hereby levied a tax equal to twenty per cent (20$)of the value of all suchmoney, prizes, and awards given in connectionwith the operation of each and all of the foregoing business enterprises,and at the time of making the report to the Comptrollerof Public Accounts, the owner or operator of any such business shallpay to the State Treasurer such tax upon the total amount of money, prizes, and awards so given during the next precedingmonth.* * *I'
That part of the statute requiring that the prize be offered or given away in connectionwith the operation of a theatre, place of business, or business enterprise is satisfied in each of the above cases. However, the giving of the prize in connectionwith the operation of a theatre,place of amusement, or business enterprise alone is not sufficientto mature the tax. If such had been the intentionof the Legislaturemore apt words could have been used. For the tax to be due the prize must be offered or given to one or more patrons of such theatre,place of amusement, or business enterprise and not given to all patrons thereofpaying the same charge for the commodityor entertainment. As used in this statute,we think the word patron is used in the same sense as customer. Ne do not believe thatmere entrance into the bean guessing contest or acceptance or a ticket and dropping one end of it into a containerand attending the drawing, or registeringat the theatre and attending the drawing or taking the precaution to. .. . ^

Honorable Geo. H. Sheppard,page 3 o-1237.

be listed as being eligible for the prize in the manner provided would constituteone a patron or customer of the store ortheatre. If the statutehad so intended it is .submittedthat the same resultwould have been accomplishedby simply levying the tax upon the giving of the prize in connectionwith the op~eration of the place of businesswithout mentioningpatrons of such business enterprise or theatre.

In case of doubt tax statutesmust beoonstruedmoiststronglyagainst the governmentand in favor of the citizen. State v. San Patricia Cannin Co.,,17 S.M. (2d) 160; Yellow Cab Co. v. Pengilly, 11 S.". (2d) $0.
Our answer to your question is that under the facts submittedto us the tax in question is not due under any~~ofthe fact situations set out above. In this connectionwe understand that the prizes are offered and given to non-patronsas well as patrons., and that no practices are engaged in such as would hamper or embarassthe non-customerwho isparticipating in the enterprise in an effort to receive the gift.

Yours very truly
APPROVED AUG. 11, 1939 GERAFII

C.MANN ATTORNEY GENERALOF TEXAS

GRL:lm:ml ATTORNEY GENERAL OFTEXAS

BY Glenn R. Lewis

Assistant