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## ATTORNEY OP TEXAS
GERALDC. MANN Auwms ,I.TEXAS

Honorable Geo. Ii. Sheppard Comptroller of Public Accounts Austin, Texas Dear Sir: Opinion No. O-3640 Re: Gross receiptstax due'bg Utilities Companyoperating in the city of Borger, which had' less than 10,000 inhabitants according to preliminary census reports published prior to January 1, 1941, but which has more than lO,OOOaccordi,ng to correctedcensus figures. fin your letter of May31, 1941, you advise us that the first release by the local census supervisor (1940) gave the town of Borger less than 10,000 popula,tion, which would class it In the 2500 to 10,000 population bracket, but that this was correctedbyWashington release onJanuary 11, 1941, by rating the city as having apopulation of 10,018.

You request OUPopinion as to whether the tax levied byArticle 7060,Revised Civil Statutes, will apply to Borger as being a city of more than 10,000 inhabitants for the quarter beginning January 1, 1941, based onreceipts for the quarter ending December 31, 1940, OPwill the tax under the higher bracket not apply until the quarter beginning April 1, 1941.

Upon inquiry at your office weare advised that the report by the Utilities company inquestion was not filed In the office of the Comptroller until January 13, 1941.

Said Article 7060 reads in part as follows: "Each indivfdual,compang, corporation or association, owning, operatingor managing or controlling anygas, electric light, electric power or water works, or water and light plant, located within any incorporated town or city in this State, andused for local sale anddistribution in said town or city, and charging for such gas, electric lights, electric power or water, shall makequarterly, onthe first days of January, April, July andHonGGeo0I-I.Sheppard, page 2 o-3640

October of each year, areport to the Comptroller under oath of the individual or of the president, treasurer or superint.andent of such company, corporation or association snowing the gross amount r,ecelved from such business done in each such incorporated city or ,townwithin this State in ths payment of charges for such gas, electric lights, electric power or water for the quarter next preceding D Said’individual, company, cbrporation OP association, at the time of making said report for any such incorporated town 01”city of twenty-five hundred (2500) inhabitants and ltess than ten thousand (10,000) inhabitants, according to the last United States Census next preceding the filing of said report, shall pay to the Treasurer of this State an occupation tax for the quarter beginning on said date equal to seven-tenths of one per cent (0,7 of 1%) of said gross receipts, as shownby said report; and for an3 incorporated town or city

‘,’ of ten thousand (10,000 Inhabitants or more, according to the last Uni’ted Stat,es Census next ~preceding the filing of said report, the sa,id indivldual, company, corporation or association, at the time of making said report, shall pay to the Treasurer of this State anoccupation tax for the quarter beginning onsaid date an amount equal to one and three-eights per cent ‘(1 3/8$) of said gross receipts, as shownby said report *”

The preliminary report or release was one of which the officials and the public might ,take notice andupon which reliance could be placed D In other words, it ‘wasa sufficient Federal CensusD Hol,comb vs, Spikes, 232 S.W,891; Ervin vs. State, 44 3-W. (2d) 3800 Under Article 7060 the report of the taxpayer was due onJanuary 1, 1941, regardless of the fact that no penalty would be incurred for failure to file for aperiod of thirty days, See Arts” 707dtand 7575, Revised Civil Statutes, In providing that the tax should be graduated “according to the last United States Census next preceding the filing of said report,“

. wethin’k it was conC,empXted that. the report would be filed onits due date, In our opinion the lower bracket will apply in this instantcooHonorable Geo. H. Sheppard, page 3 o-3640

Yours very truly ATTORNEY

GENERALOFTEXAS

Byg/Glenn R. Lewis Glenn R. Lewis Assistant GRLzlh:wc

APPROVEaJVL 12, 1941 s/Grover Sellers FIRSTASSISTANT ATTORNEY

GENEZRAL This Opinion Considered AndApproved In Limited Conference