TB[EL%TORNEY GENERAL 

OPTEXAS 

April 24, 1959 

Honorable Robert S. Calvert Opinion No. W-606 

Comptroller of Public Accounts 

Capitol Station Re: Whether a garage carrying 

Austin, Texas a stock of parts for installation on customers' 

automobiles for repair la 

subject to the store tax 

levied by Article lllld, 

Vernon's Penal Code, and 

Dear Sir: related questions. 

We quote from your opinion request as follows: 

"I will thank you to advise this Department whether 

or not a garage that operates under any one or all of 

the four following conditions is subject to the Store 

Tax as levied by Article llllD, Vernon's,Annotated 

Penal Code of Texas. 

"1. Where a garage carries a stock of parts for 

the primary use of installation on customers' automobiles for repair and the customers are billed 

separately for the parts and for the labor. In some 

cases the parts are not billed separately from the 

labor but as a complete job. 

"2. Where a garage does not carry parts in its 

stock but on repair or maintenance jobs secures or 

obtains parts from other places of business and installs same in customers' cars as repairs, billing 

the customers separately for parts and for labor. 

"3. Where a garage carries in stock automobile 

parts primarily for use in repairs in the shop but 

does make an occasional sale of these parts. 

" 4. Where a garage carries a stock of tires but 

does not make independent sales of such tires. He 

does install such tires on customers' cars and makes 

a charge for the tires but no charge for labor. In 

some instances there is an exchange made for the 

customer's old tires and the difference for the new 

tires paid In cash." 
Hon. Robert S. Calvert, Page 2 (Opinion No. 606) 

The portions of Article 11116, V.P.C., relevant to this 

opinion are as follows: 

Section 7: 

"The term 'store' as used in this Act shall be construed 

to mean and include any store or stcres or any mercantile establishment or establishments not speailical~y 

exempted within this Act which are owned, operated, maintained, or controlled by the same person, agent, receiver, 

trustee, firm, corporation, copartnership or association, 

either domestic or foreign, in which goods, wares, or 

merchandise of any kind are sold, at retail or wholesale." 

Section 5(a): 

II . . .Provided that the term 'store, stores, mercantile 

establishment, and mercantile establishments,' whenever 

used in this Act shall not include:. . .garages;. . ." 

Section 5(c): 

"All. .establishments. .exempted. . .by this Act 

shall file an application'as required by Sections 2 and 

4 of this Act. If they meet the requirements of this 

Act for exemption, they shall pay an exemption fee of 

Four Dollars ($4) for one store and Nine Dollars ($9) 

for each additional store in excess of one." 

The provisions of Article 5 quoted above apply only to garages 

which qualify as "stores" under Section 7 of Article lllld, 

V.P.C. Garages which make no sales, but render "service" only, 

do not come within the affirmative operations of Article lllld; 

consequently, the provisions of Section 5, supra, are inapplicable to such garages. See Attorney QeneraFsTpinion No. 

v-1389 (1952), a copy of which is annexed hereto. 

The test of a store is whether sales of goods, wares 

or merchandise are made at the place in question. Hurt v. 

Cooper, 130 Tex. 433, 110 S.W. 2d 896 (1937); Mont ornery 

EZ-'iZiCompany v.State, 169 S.W. 2d 997, affirme ?r-l?&&e 

Y(5 S.W. 2d 218 (1943). Standard Oil Company of Texas v. 

State, 142 S.W. 2d 519 (Tex.Civ.App. 1940, error refused) and 

Humble Oil and Refining Company v. State, 158 S.W. 2d 336 

(Tex.Civ.App. 1942 error refused) dealt with the contention 

that service stati&s which sold automobile accessories, which 

were installed on the customer's automobile at the time of 

sale, were not required to pay the store tax because of the 

provision of Section 5 of Article lllld 'that the term 'store, 
Hon.,Robert S. Calvert, Page 3 (Opinion No. WW-606) 

stores, mercantile establishment, or mercantile establishments' 

whenever used in this Act shall not include:. . .any place of 

business engaged exclusively in the storing, selling, or distributing of petroleum products and servicing of motor vehicles;. . .I' (Emphasis added). The court in each of these cases 

held that the service stations in question were "stores" within 

the meaning of Article lllld; the fact that the accessories 

were installed on the automobile did not make the transaction 

purely a "service," so as to qualify the service station for 

exemption. 

We regard the foregoing cases as controlling in the 

present situation. If a garage makes sales of parts in connection with its operations, it is a "store" within the meaning of Section 7 of Article lllld; the fact that such parts 

are installed upon the automobile in the course of repair is 

immaterial, This conclusion is not altered in cases where a 

garage submits a bill without detailing the respective charges 

for service and for parts.1 

In view of the preceeding discussion, we hold.that the 

garages in each of the four situations you describe are 

"stores" within the meaning of Article lllld, V.P.C., and are 

required to file an application and pays an exemption fee under 

the terms of Section 5(c) thereof. 

SUMMARY 

Garages which make Sales of parts in 

connection with their course of business in 

making repairs are "stores" within the meaning of the Article lllld, V.P.C., and are 

required to obtain an exemption license under 

the terms of Section 5(c) of said Article. 

The fact that the parts are installed on the 

customer's automobile is immaterial. This 

' In this connection see Western Company v. Sheppard, 181 S.W. 

2d 850 (Tex.Civ.App. 19443ror refused), which Involved the 

cons&r&ion of the Act levying a tax upon service rendered 

in connection with acidizing wells, etc. The court said that 

the sale of acid or materials in connection with such service 

was a separable item and "no good reason appears why those engaged in such business could not and should not segregate in 

each instance a fixed charge for such service from the sales 

prices of their materials at the well head. In the absence of 
Hon. Robert S. Calvert, Page 4, (Opinion No. WW-606) 

conclusion Is not altered in cases where a 

garage submits a bill without detailing the 

respective charges for parts and labor. 

Very truly yours, 

WILL WILSON 

Attorney General 

Assistant 

JNP:bct 

APPROVED: 

OPINION COMMITTEE: 

Geo. P. Blackburn, Chairman 

David R. Thomas 

J. Milton Richardson 

Marvin H. Brown, Jr. 

Robert T. Lewis 

Richard 0. Jones 

FWED F'OR THE ATTORNEY GENERAL 

: 

W. V. Geppert 

1 (Con't) such segregation and the fixation of a specific 

service charge, since the statute expressly taxes only the 

service, regardless of the dominant element of value of the 

materials used, the most reasonable and practical method of 

arriving at the service charge would be the difference between 

the fair and reasonable market value of the acid delivered at 

the well head and the total gross charge; or if such market 

value cannot be so established, then its actual or intrinsic 

value at the well head."