Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MAlTOX December20, 1985
Attorney General JM-399 OVERRULED H-708
Supreme Court Building Mr. Jim Lusk OpinionNo. m-399
P. 0. Box 12549
Austin, TX. 79711. 2549
ExecutiveDirector
51214752501 Texas AmusementMachine Commission Re: Prorationof occupationtax
Telex 9101874.1367 P. 0. Box 13226, Capitol Station under article 8802, V.T.C.S.,
Telecopier 5121475-0286 Austin,Texas 78"l.l and proration of license and
registrationfees under article
714 Jackson, Suite 700 8817, V.T.C.S.
Dallas, TX. 75202.4509
21417428944 Dear Mr. Lusk:
4824 Alberta Ave., Suite 180
You ask severlrl.
questionsregardingproratioaof certain fees and
El Paso, TX. 79905.2793
taxes to be collect,zd
by the Texas AmusementMachine Commission. The
915/5333494 commission issues .and collects fees for licenses and registration
certificatesfor persons who engage in business activitiesinvolving
coin-operatedmacI.ines. V.T.C.S. art. 8817. The cmisslon also
1001 Texas, Suite 700 collects the annual occupation tax on coin-operated machines.
Houston, TX. 77002.3111
7131223-5886
V.T.C.S. art. 8802.
Your first qucmtiondeals with fees for licensesand registration
506 Broadway, Suite 312 certificates. Art:lcle 8817 specifiesannual fees for various licenses
Lubbock, TX. 79401.3479 and sets a $50 registrationfee for persons who are exempt from the
So6(747-5238
licensingrequiremnts but who own and exhibit coin-operatedmachines.
V.T.C.S. art. 8817,,5116, 16A. All licensesissued under article 8817
4309 N. Tenth. Suite S expire on December:31st of each year. Id. 19. It is implicit in
t&Allen, TX. 7950%1885 article 8817 that registrationcertificatesalso expire ou December
512/@2-4547
31st of each year. Compare art. 8817. §9, and art. 8817, 016A.
Consequently,many :Lnitlallicensesand registrationcertificatesare
20 Maln Plaza, Suite 4Ml valid for less thm a full year. You ask whether you may prorate the
San Antonio, TX. 79205.2797 fee for an initial Licenseor registrationcertificateo* a quarterly
5121225-419l basis. We couclud~! that you cannot prorate fees for such licensesand
registrationcertificates.
An Equal Opportunity/
Affirmative Action Employer This office hm issued severalopinionsdealingwith prorationof
license fees. Thorn opinionshave reached differentconclusionsas to
the propriety of proration based on the language of the relevant
statutes.
In a 1970 op~xlon this office consideredwhether the Texas State
Department of Bealth could prorate licensing fees under article
4477-6,V.T.C.S. AttorneyGeneral OpinionM-580 (1970). That statute
provided that such Iicensesmust be renewed each year by January 1st.
V.T.C.S. art. 4477-6. 013. The section of the statute that listed
p. 1826
Mr. Jim Lusk - Page 2 (JM-3'39)
annual fees for licenses began with the following words: "The
following fees shall accospany each application.. . ." &I& 112.
This office concludedthat those words made clear that the department
had no authorityto prorate the annual fee for the initial license. A
1972 opinion relied on sim:.l.ar
language in the Texas StructuralPest
Control Act, article 135b-6, V.T.C.S., in concluding that the
StructuralPest Control Boatedcould not prorate the initial fee for a
licenseunder the act. AttfxmeyGeneral OpinionM-1107 (1972).
In contrast,AttorneyI:eneral OpinionH-708 (1975) concludedthat
the fee provided for in the :iollowing
statute could be prorated:
The annual felrfor each auctioneer'slicense
issued by the cormisslonerto a resident of this
state is $100. The annual fee for each
auctioneer'slicenseissued by the coamissionerto
a nonresident is $300. The commissioner shall
issue the license,upon receipt of payment of all
license fees. All licensesexpire annuallyon the
last day of December of each year and shall be
renewed upon the ,ceceipt
of the written request of
the licenseeand ,therequired licensefee. . . .
Acts 1975, 64th Leg., ch. 320, 54(a), at 828 (the 1975 version has
since been amended by Acts 1977, 65th Leg., ch. 314, at 842).
AttorneyGeneral Opinion H-708 distinguishedAttorneyGeneral Opinions
M-580 and M-1107 because th#rstatutesconsideredin those two opinions
containedlanguage requiringan initial applicationto be accompanied
by the specifiedfees, whereas the language in the statute considered
in Attorney General Opinian E-708 set an "annual fee" but did not
specifically require that the "annual fee" accompany an initial
application. Therefore, tke opinion concluded,the annual fee could
be prorated for a licenset'l;ltwould not be valid for a full year.
The language used in article 8817 compels us to follow Attorney
GeneralOpinionsM-580 and Id-1107rather than AttorneyGeneral Opinion
H-708, the continuingvalidity of which we would question in any case.
As we pointed out prev1out;l.y.section 16 of article 8817 specifies
annual license fees, and contains the following provision regarding
applicationsfor licenses:
The application must be accompanied by the
annual license f:e in the form of a cashier's
check or money order payable to the coamission.
(Emphasisadded).
V.T.C.S. art. 8817, 513. Betcause article 8817 sets out annual license
fees in one section and 1x1another section requires that an initial
applicationfor a licensebe accompaniedby "the annual license fee,"
YOU nay not prorate the fee :Eoran initial license.
p. 1827
Mr. Jim Lusk - Page 3 (JM-399)
Also, article 8817 mntains the following provision regarding
registrationfees:
The fee for registrationof machines affected
by this section L:s $50 for the business entity in
which the owner'smachines are exhibited. The fee
shall be paid to the cosmissionby cashier'scheck
or money order.
V.T.C.S. art. 8817, §16A(L,).Here the statute simply sets a fee --
not an "annual" fee - for registrationand then requires that "the
fee" be paid to the cosneiss:Lon.This languagedoes not permit you to
prorate the initial fee for registration.
Your second question is whether you may prorate the occupation
tax on coin-operatedmachines. V.T.C.S. art. 8802. Article 8802
provides:
Every 'owner', save an owner holding an import
license and holding coin-operatedmachines solely
for re-sale, who owns, controls, possesses,
exhibits,displa:rtr,or who permits to be exhibited
or displayed lr. this State any 'coin-operated
machine' shall pay, and there is hereby levied on
each 'coin-operai:ed
machine',as definedherein in
Article 13.01, except as are exempt herein, an
annual occupationtax of $30.00, except that the
annual tax on each coin-operatedmachine that is
designed exclusively for showing motion pictures
is $1,500.00. 'Ihe tax shall be paid to the
commissionby caabier'scheck or money order.
In 1941, this office consideredwhether the Comptrollerof Public
Accounts could make a rule permittingthe payment of occupationtaxes
on coin-operatedmachines on a quarterly basis. Attorney General
Opinion O-3009 (1941). This office concludedthat the comptrollerhad
no authorityto do so. The requestorhad suggestedthat the following
statutewould permit such ,arule:
[T]he payment of the specific tax herein provided
for, shall be required by the collectorof taxes
to be made befor<,any person, firm, or association
of persons shall be allowed to engage in any
occupation requ::ringa license under the pro-
visions of this