T~ICATTOIRNEY GENERAL 

OF TEleLAS 

February 18, 1939 

Honorable Homer L. Moss 

County Attorney 

Wheeler County 

Wheeler, Texas 

Dear Sir: Opinion No. 0-lg0 

pe: School's payment of ,occupation 

tax for ormeting skating rink 

and theater -Whether person 

principally engaged as farmer 

is liable for payment of 

occupation tax for occasionally 

acting as auctioneer 

We are in receipt of your letter of recent date in which you request 

an opinion from this Department. The pertinent portions of your 

letter being as follows: 

"First, we are interested in the problem of taxing a 

skating rink, under the following conditions: 

*The Wheeler Independent School District owns and 

operates iu connection with its athletic program, a 

gymnasium upon its campus, which together with all 

equipment is school property. School patrons and 

other children of Wheeler have lately purchased an 

adeauate supply of skates and accessmies. I understand 

that is is agreed that these shall be the property of 

the school athletic association. It seems that a 

skating rink is being sponsoxedby the school or 

athletic association in connection with which the 

gymnasium and its floor is being used. A small fee is 

charged to those desiring to pursue the recreation of 

skating,during scheduled hours of week nights. The 

privilege is granted to students and the general public 

alike and the building is open to the public. Any one 

desiring to skate !my do so upon payment of the 

desired-fee and may then pursue the sport with skates 

furnished bye the housefor asoheduled timeLeach 

evening~whan the Gym. 19 open'tothe pastime,- A ~fee 

entitles the participantto ~enjoy-the.pastime'for a 

soheduled.,time dqipg the particulaxJevenlng .ir.which 

he pays. ,If he or she desires to skate on the followinr 

or another night another fee is charged. The funds derived 
Hon. Homer L. Moss, February 18, 1939, Page 2 O-190 

from these fees~or admissions to the floor are used 

at present to pay for the skates and expenses of 

operating the hall for the purposes above named. When 

the skates are paid for, it is the intention of the 

sponsors, that is, the athletic association to place all 

profits above expenses in the athletic fuxd, to be used 

for basketball and other athletic expenses just as 

revenue derived from admissions to basket ball games or 

other athletic sports would be used. Understand,.the 

parties who furnished the money to make the initial 

payment on the skates will be reimbursed." 

1. Your question concerning the above quoted portion of your letter 

is as follows: Is the skating rink being operated for profit, and 

as such is the school liable for payment of occupation tax under 

the provisions of Article 7047, Section 341 

2. In the next question you inquire as to whether or not a rural 

high school operating a weekly picture show on its campus and charging 

admission from the general public would be liable for the payment of an 

occupation tax? 

3. In the next question you inquire as to whether or not a farmer who 

occasionally acts as an auctioneer in the sale of farm products would 

be liable for the payment of an occupation tax? 

The pertinent portions of your letter in connection uith the third 

question being as follows: 

qe have one or more men in the county who are principally 

farmers, but hold themselves out as auctioneers in that 

they cry sales of farm outfits in different parts of the 

county during the early part of each year, sometimes 

auctioning livestock or hogs along. By farm outfits, I 

mean a situation where a farmer sells out all feed on hand 

all implements supplies and livestock and the like. These 

local auctioneers charge a small profit but engage in the 

crying of perhaps a dozen or less sales per year. Such 

is not their main occupation or means of livelihood." 

In answering question No. 1 in your inquiry we deem it necessary 

to first discuss the phrase, or term, ' used for profit" as used in 

Article 7047, Sec. 34, R. C S. of Texas. The statute does not attempt 

to define nor limit the meaning of said phrase or term, and since the 

act does not define it, it must be given the meaning ordinarily 

attributed to the phrase. 
. . 

Hon. Homar L. Moss, February 18, 1939, Page 3 0-W 

Profit is usually regarded as "the gain made on any business or investment 

when both the receipts and the paymants are takan into consideration." 

6 Words & Phrases, First Series, p. 5659. 

I direct your attention to the case of Houston Pelt & Terminal Railway 

Company vs. Clarke, 122 S. W. (2d) 356, which amply defines and 

discusses the word *profit". From the decis+m in the above case, 

together with the definition above stated from Words & Phrases, we 

are of the opinion and you are accordingly advised that the 

skating rink in question is being operated for profit. 

Next we will discuss the question of whether the school is engaging in 

the "occupation" of operating a skating rink. In discussing this phase 

of the question,wense principallythreesoningand language as 

submitted in your brief, whichis to the ,effecC that the school, as set 

out in your inquiry, is not principally in the business of operating a 

skating rink, yet such an institution, it seems could pursue a taxable 

occupation as an auxiliary means of obtsiniag revenue. In other words, 

if the recreation operated in this instance is otherwise taxable, I:. 

hardly believe that the fact that theinstitution is operated for 

educational purposes would constitute an exemption. For example, the 

operating of a campus store, or the operation of a public theater to 

which the general public would be invited, would be engaging in an 

occupation other than that of the operation of a public school. 

It is, therefore, the opinion of this D&rtment,~and you are accordingly 

advised that the school, in conducting l&e operation of a &sting rink, 

is so engaged in that operation, dnd inasmuch as we have held in this 

opinion that the operation is for profit, the school in such operation 

would be subject to the payment of 8n occupation tax, as is provided in 

Article 7047, Sec. 34. 

In answer to question Bo.*2, we are of the opinion, and you are so 

advised, that a rural high school operating a weekly picture show, 

and charging an admission, would be subject to the payment of an 

occupation tax for the same reason as stated in answer to question 

. No. 1. 

In answer to question No. 3, we wi$htodirect your attention to certain 

facts in your letter with reference to the farmers holding themselves 

out as auctioneers which reads, in part ss follows: 

%e have one or more men in the county who are principally 

farmers, but hold themselves out as auctioneers in that they 

cry sales of farm outfits in different parts of the county 

during the early part of each year, * * * 
c . 

Hon. Homer L. Moss, February 18, 1939, Page 4 0-190 

You will note from the above facts that the persons are holding themselves 

out as auctioneers.as apart of their means of livelihood, and as such 

would obviously be prepared to engage in that occupation whenever the 

opportunity should require, depending, however, upon the amount of 

auctioning to be done in the county. You will note further in your 

letter facts with reference to the auctioneers receiving profit, 

,pertinent portions of your letter being as follows: 

"These local auctioneers charge a small profit but engage 

in the crying of perhaps a dozen or less sales per year." 

It is clear from the above facts that these auctioneers receive profits 

from the auctioning, thisbeing one of the essential elements of an 

occupation,. We direct your attention to the case of Tarde vs. Benseman, 

31Tex. Rep. 282, in which the court, in discussing the term "Occupation" 

had the following to say: 

what is,an occupation in contemplation of the constitution 

and the law? The connection &which the word 'occupation' 

stands in the constitution would seem to give some indication 

of what was intended by it. It says: 'Pursuing any occupation, 

trade, or profession.' Certainly the two latter, ' trade or 

profession,' import profitable~pureuits." 

We also direct your attention to the case of Williams vs. State, 23 Tex. 

Ct. of Appeals Reps. 499, in which the court, in discussing the defintion 

of "occupation* used the following language: 

"It does,not require even a single sale to constitute the 

offense, for a parson may engage in the business without 

succeeding in it, even to the extent of one sale." 

From the above facts quoted from your letter, together with the decisions 

cited, we are of the opinion, and you are accordingly advised, that such 

personsholding themselves as auctioneers would be subject to the payment 

of an occupation tax as is required by Article 7047; Section 6. 

Yours very truly, 

APPROVED 

s/ Gerald C. Mann 

ATl!ORN!IY GXNERAL OF TKKAS 

ATTORNEX GENEBAL OF TEihS 

s/ George P. Kirkpatrick 

BY 

George P. Kirkpatrick 

Assistant 

GPRFG/ldw