### T~ICATTOIRNEY GENERAL OF TEleLAS

February18, 1939 Honorable

Homer L. Moss CountyAttorney WheelerCounty Wheeler,

Texas
Dear Sir: Opinion No. 0-lg0 pe: School's

paymentof ,occupation tax for ormeting skatingrink and theater -Whether person principally

engagedas farmer is liablefor paymentof occupation

tax for occasionally acting as auctioneer
We are in receiptof your letterof recentdate in which you request an opinionfrom this Department. The pertinent portions

of your letter being as follows: "First, we are interested

in the problem

of taxinga skatingrink, under the following conditions:
*TheWheeler Independent SchoolDistrict

owns and operatesiu connection with its athletic

program,

a gymnasium

upon its campus,

which together

with all equipmentis schoolproperty. Schoolpatronsand other children

of Wheeler

have lately

purchased

an adeauatesupply of skatesand accessmies. I understand that is is agreed that these shallbe the property of the schoolathletic association. It seems that a skatingrink is being sponsoxedby the school or athletic

association

in connection

with which the gymnasium

and its floor is being used. A small fee is chargedto those desiring to pursue the recreation of skating,during

scheduled

hours of week nights. The privilege

is grantedto students and the general

public alike and the buildingis open to the public. Any one desiring

to skate !my do so upon paymentof the desired-fee

and may then pursue the sportwith skates furnished

bye the housefor asoheduled timeLeach evening~whan

the Gym. 19 open'tothe pastime,- A ~fee entitlesthe participantto ~enjoy-the.pastime'for a soheduled.,time

dqipg the particulaxJevenlng .ir.which he pays. ,If

he or she desiresto skate on the followinr or another

night another fee is charged. The funds derivedHon. Homer L. Moss, February18, 1939, Page 2 O-190

from these fees~or

admissions

to the floor are used at presentto pay for the skatesand expenses of operating

the hall for the purposes above named.

When the skatesare paid for, it is the intention of the sponsors,

that is, the athletic association

to place all profitsabove expensesin the athletic fuxd, to be used for basketball

and other athletic

expensesjust as revenuederivedfrom admissions to basketball games or other athletic

sports would be used. Understand,.the parties

who furnished

the money to make the initial paymenton the skates will be reimbursed." 1. Your question

concerning

the above quoted portion of your letter is as follows: Is the skatingrink being operated for profit,

and as such is the school liable for paymentof 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 schooloperating a weekly pictureshow on its campusand charging admission

from the general

public would be liablefor the paymentof 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 paymentof 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 countyduring 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

chargea small profit but engage in the crying of perhaps

a dozen or less sales per year. Such is not theirmain occupation or means of livelihood."
In answering

question

No. 1 in your inquiry we deem it necessary to first discussthe phrase,or term, ' used for profit"as used in Article 7047, Sec. 34, R. C S. of Texas. The statutedoes not attempt to definenor limit the meaningof 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 HoustonPelt & 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 advisedthat the skatingrink in questionis being operatedfor profit.
Next we will discussthe question of whether the school is engagingin the "occupation"

of operating

a skatingrink. 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 skatingrink, yet such an institution, it seems could pursue a taxable occupation

as an auxiliary

means of obtsiniag

revenue. In otherwords, if the recreation

operatedin this instance is otherwise

taxable,

I:. hardlybelieve that the fact that theinstitutionis operated for educational

purposes

would constitute

an exemption.

For example, the operating

of a campusstore, or the operation of a public theaterto which the general

public would be invited,

would be engagingin an occupation

other than that of the operation of a publicschool.
It is, therefore,

the opinionof this D&rtment,~and you are accordingly advisedthat 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 opinionthat the operation is for profit, the school in such operation would be subjectto the paymentof 8n occupation tax, as is providedin 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 pictureshow, and charging

an admission,

would be subject to the paymentof 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 personsare holding themselves out as auctioneers.as a part of their means of livelihood, and as such would obviously

be prepared

to engage in that occupation wheneverthe opportunity

shouldrequire,

depending,

however,

upon the amount of auctioning

to be done in the county. You will note further in your letter factswith reference to the auctioneers

receiving

profit, ,pertinent

portions

of your letter

being as follows: "These local auctioneers chargea small profitbut engage in the cryingof 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 directyour 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, ' tradeor profession,'

import profitable~pureuits."
We also directyour 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 parsonmay 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 personsholdingthemselves as auctioneers

would be subject to the payment of an occupation

tax as is required

by Article 7047; Section6.
Yours very truly,
APPROVED s/ GeraldC. Mann ATl!ORN!IY

GXNERAL

OF TKKAS ATTORNEX GENEBAL OF TEihS s/ GeorgeP. Kirkpatrick

BY George

P. Kirkpatrick Assistant GPRFG/ldw