T~ICATTOIRNEY GENERAL OF TEleLAS
February18, 1939
HonorableHomer L. Moss CountyAttorney WheelerCounty Wheeler,Texas
Dear Sir: OpinionNo. 0-lg0 pe: School'spaymentof ,occupation tax for ormeting skatingrink and theater -Whether person principallyengagedas farmer is liablefor paymentof occupationtax for occasionally acting as auctioneer
We are in receiptof your letterof recent date in which you request an opinionfrom this Department. The pertinentportionsof your letterbeing as follows:
"First,we are interestedin the problemof taxinga skatingrink, under the followingconditions:
*TheWheeler IndependentSchool Districtowns and operatesiu connectionwith its athleticprogram,a gymnasiumupon its campus,which togetherwith all equipmentis schoolproperty. Schoolpatronsand other childrenof Wheelerhave latelypurchasedan adeauatesupply of skates and accessmies.I understand that is is agreed that these shall be the propertyof the school athletic association. It seems that a skatingrink is being sponsoxedbythe school or athleticassociationin connectionwith which the gymnasiumand its floor is being used. A small fee is chargedto those desiringto pursue the recreationof skating,during scheduledhours of week nights. The privilegeis grantedto studentsand the generalpublic alike and the buildingis open to the public. Any one desiringto skate !my do so upon paymentof the desired-feeand may then pursue the sport with skates furnishedbyethe housefor asoheduled timeLeach evening~whanthe Gym. 19 open'tothe pastime,-A ~fee entitlesthe participantto~enjoy-the.pastime'for a soheduled.,timedqipg the particulaxJevenlng .ir.which he pays. ,Ifhe or she desiresto skate on the followinr or anothernight anotherfee is charged. The funds derived Hon. Homer L. Moss, February18, 1939, Page 2 O-190
from these fees~oradmissionsto the floor are used at presentto pay for the skatesand expensesof operatingthe hall for the purposesabove named.When the skatesare paid for, it is the intentionof the sponsors,that is, the athleticassociationto place all profitsabove expensesin the athleticfuxd, to be used for basketballand other athleticexpensesjust as revenuederivedfrom admissionsto basket ball games or other athleticsportswould be used. Understand,.the partieswho furnishedthe money to make the initial paymenton the skateswill be reimbursed."
1. Your questionconcerningthe above quoted portionof your letter is as follows: Is the skatingrink being operatedfor profit,and as such is the school liablefor paymentof occupationtax under the provisionsof Article 7047, Section 341
2. In the next questionyou inquireas to whether or not a rural high schooloperatinga weekly pictureshow on its campusand charging admissionfrom the generalpublicwould be liablefor the paymentof an occupationtax?
3. In the next questionyou inquire as to whether or not a farmerwho occasionallyacts as an auctioneerin the sale of farm productswould be liablefor the paymentof an occupationtax?
The pertinentportionsof your letter in connectionuith the third questionbeing as follows:
qe have one or more men in the countywho are principally farmers,but hold themselvesout as auctioneersin that they cry sales of farm outfitsin differentparts of the county duringthe early part of each year, sometimes auctioninglivestockor hogs along. By farm outfits,I mean a situationwhere a farmer sells out all feed on hand all implementssuppliesand livestockand the like. These local auctioneerschargea small profitbut engage in the crying of perhapsa dozen or less sales per year. Such is not their main occupationor means of livelihood." In answeringquestionNo. 1 in your inquirywe deem it necessary to first discussthe phrase,or term, ' used for profit"as used in Article 7047, Sec. 34, R. C S.