### GENERAL

Honorable Robert S. Calvert Opinion No. 

### M-428 Comptroller of Public Accounts State Capitol Re: Whether bequests under Austin, Texas 

### '7871.1 a will to towns of Edirburg, Johnson County, Indiana, and Waco, McLennan County, Texas, for the purpose of maintaining cemeteries are exempt from inheritance Dear Mr. Calvert: tax. Your letter directed to this office requesting a written opinion reads, inpart, as follows: 11 necedent.7. died testate a resident MELennaE County; Texas, on August 

### 16,1967, andof all the required reports under the Inheritance Tax Law have been made and filed with this Department. "Under the terms of the lastwill and testament of the deceased,bequests of fiveper cent of the income from the
. ,47ecedent's
. Foundationwere made to ia-& of the d . . ollowing: "(1) 'Townof Edinburg, Johnson County, Indiana, for the purpose ofmaintenance and upkeep of the Rest Haven Cemetery, Edinburg, Indiana.'

“(2) 'Cityof Waco, McLennan County, Texas, for the purpose ofmaintenance and upkeep of Oakwood Cemetery,Waco, Texas.1 "YourDepartment has passed on similar questions in Opinions M-110 and ~-228. Therefore,we wish

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Hon. Robert S. Calvert,page 2 (M-428)

to be advisedwhether or not thesebequests are exempt as provided under Article 14.015 of Chapter 14, Title 122A, Taxation-General." You have furnished us with a copy of the lastwill of Decedent, togetherwith a letter from theAttorney representinghis estate,which enclosed a Xerox copy of Article 2, Chapter 8, Title 1, of the Administrative Code of the City of Waco coveringMunicipal Cemeteries. This Article reads in part as follows:

"Article2.-Municipal Cemeteries. "SECTIONS l-805. LOCATIONSAND NAMES. There shall be four Public Cemeteriesunder the control of the City ofWaco, viz:

~** * + "SECTICN l-805.3. 'OAKWOODCEMETERY.' Located south of the City of Waco, at the terminus of South Fifth Street, about onfl and a half miles from the public square. Article 14.015, Revised Civil Statutes, Title 122A, Taxation-General,reads, in part, as follows:

"Art. 14.015 Exempt Transfers "The inheritance tax imposedby Article 14.01 shall not apply to the following transfers ofproperty:

**** "(3)PublicUse. Property transferred to or for the use of thftsstate or any town therein for public purposes. The Administrative Code of the City ofWaco, supra, provided for four public cemeteries (oneof which is Oakwood Cemetery), and places all four of them under the control of the City of Waco, which makes it the duty of the City to maintain them as public cemeteries. Maintenance of a public cemetery is certainly for a "public use" and "publicpurpose." It follows that the bequest to the City of Waco for themaintenance of this cemetery is one which comes squarelywithin the provisions of Article 14.015, Section 3, supra, as being a transfer to a town of this State for a public purpose or public use. It

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### 3 (~J.+28)

relieves the City of Waco of a burden it would otherwise have to shoulderwith City funds were it not for this bequest. We thereforehold it to be an exempt transfer. The transfer, on the other hand, to the Town of Edinburg, Johnson County, Indiana, is not an exempt transferbecause it is not a transfer to or for the use of a town within this State asprovided in Article 14.015,Vernon's Civil Statutes, ?Z?% any other exemptpurpose. Article l&.015(3) expressly contemplatesan exemption for property transfers 'forthe use of this state or any town therein
. . . (Emphasisadded) SUMMARY A transfer to or for the use of a townwithin this State for public purposes is an exempt transfer. A transfer to or for the use of a town which is not a Texas town is not an exempt transfer. truly yours, I

Preparedby Fisher A. Tyler Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman George Kelton,Vice-Chairman Harold Kennedy JamesMcCoy Fielding Early Bob Lattimore Hawthorne Phillips ExecutiveAssistant

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