Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
December 10, 1981
MARK WHITE
Attorney General
Supreme Court Building
Honorable Bob Bullock Opinion No. MW-408
P. 0. BOX 12546 Comptroller of Public Accounts
Austin, TX. 76711 LBJ State Office Building Ik: Validity of city ordinance
5121475-2501 Austin, Texas 78774 requiring taxpayers to file
Telex 9101674-1367
copy of sales tax return with
Telecooier 51214750266
city
1607 Main St., Suite 1400 Dear Mr. Bullock:
Dallas, TX. 75201
2141742.6944
You have requested an opinion from this office on the following
questions:
4624 Alberta Ave., Suite 160
El Paso, TX. 79905 1. May a city pass an ordinance requiring
9151533.3464 vendors reporting local sales tax to file a copy
of their sales tax return with the city?
1220 Dallas Ave., Suite 202
Houston, TX. 77002 2. May a home rule city pass an ordinance
71316500666 requiring vendors reporting local sales tax to
file a copy of their sales tax return with the
city?
606 Broadway, Suite 312
Lubbock, TX. 79401
6061747.5236 3. If a copy of the vendor's sales tax
return may be required by the city, is the city
legally obligated to keep the return confidential?
4309 N. Tenth, Suite B
McAllen, TX. 76501
5121662.4547
Article 1066c, V.T.C.S., the Local City Sales and Use Tax Act, was
originally enacted in 1967 and allows the city to adopt a local sales
and use tax. The act clearly imposes the tax only on those items
200 Main Plaza, Suite 400 subject to the state sales and use tax. Section 5(a) of the act
San Antonio, TX. 76205
provides that:
5121225-4191
the comptroller shall perform all functions
An Equal Opportunity1 incident to the administration, collection,
Affirmative Action Employel enforcement, and operation of the tax, and the
Comptroller shall collect, in addition to the
Limited Sales, Excise and Use Tax for the State of
Texas, an additional tax under the authority of
this Act of one percent (l%).... The tax imposed
hereunder and the tax imposed under the Limited
Sales, Excise and Use Tax Act shall be collected
together, if both, are imposed, and reported upon
p. 1391
Honorable Bob Bullock - Page 2 (MW-408)
such forms and under such administrative rules and
regulations as may be prescribed by the
Comptroller....
Sections 5(b), (c). and (d) require the comptroller to make reports on
tax collections to a city if requested. These provisions underscore
the legislative intent that a city look to the comptroller for
information.
Section 6 of the act provides that:
[tlhe following provisions shall govern the
collection by the Comptroller of the tax imposed
by this Act: A. All applicable provisions
contained in Chapters 1 and 20 of Title 122A shall
apply to the collection of the tax imposed by this
Act, except as modified in this Act.
Other provisions of the act, such as sections 2(G), (I). (J),
(K), 4, 6c, and 6d, make it clear that the comptroller is the sole
administrator and collector of the tax, but that the city has a right
to sue in its own behalf. A prior opinion of this office, Attorney
General Opinion H-274 (1974), concluded that the state comptroller is
the sole collector of taxes under article 1066c, V.T.C.S., although
cities may independently file suit for such taxes and any such tax
monies received by the cities shall be remitted to the state
comptroller for deposit in the state treasury for the city's benefit.
With respect to the authority of cities, no city may pass a law
in conflict with a general statute. Such a statute, if adopted,
supersedes the conflicting provisions of the city charter. 45 Tex.
Jur.2d Municipal Corporations, §115. Where the state of Texas has
adopted a general law and applied it to cities of a certain class, no
city may pass legislation in conflict with the general enactment.
Beaumont v. Fall, 291 S.W. 202 (Tex. 1927). A city is prohibited, not
only from enacting local laws in direct conflict with statutes or
constitutional provisions, but also from entering a field of
legislation which has been occupied by general legislation. city of
Lubbock v. South Plains Hardware, 111 S.W.2d 343 (Tex. Civ. App. -
Amarillo 1937, no writ). Any reasonable doubt as to the existence of
a power is resolved by the courts against a city. Foster v. City of
Waco, 255 S.W. 1104 (Tex. 1923). A city can exercise only those
powers expressly or impliedly conferred by law, and powers will be
implied only when such grant is reasonably incident to those expressly
granted or if essential to the purposes of the city. Anderson v. City
of San Antonio, 67 S.W.2d 1036 (Tex. 1934).
The home rule amendment to the Texas Constitution, article XI,
section 5, and the enabling legislation, article 1165, V.T.C.S.,
authorizes full power of self-government for home rule cities. It is
not necessary to look to the legislature for grants of power to home
rule cities, but only for limitations on their power. Such
p. 1392
Honorable Bob Bullock - Page 3 (MW-408)
limitations may be express or implied. Lower Colorado River Authority
V. City of San Antonio, 523 S.W.2d 641 (Tex. 1975). However, article
XI, section 5 of the Texas Constitution and article 1165, V.T.C.S.,
both provide that a home rule charter ordinance shall not contain any
provisions inconsistent with a general statute. See also Burch v.
City of San Antonio, 518 S.W.2d 540 (Tex. 1975); Berry v. City of Fort
Worth, 124 S.W.2d 842 (Tex. 1939). We believe that the legislature
intended the comptroller to be the sole administrator and collector of
local sales and use taxes pursuant to article 1066c, V.T.C.S., and
that the cities' powers are limited to filing lawsuits to recover
delinquent taxes. A city's request that a taxpayer file a local sales
and use tax return with the city is inconsistent with the power
granted the comptroller as administrator and collector of local sales
and use taxes.
Additionally, it should be noted that article 20.11(G)(l),
Taxation-General, V.T.C.S., provides that "...a11 information secured,
derived or obtained from any record, report, instrument or copy
thereof, required to be furnished under the terms of this Chapter,
shall be and shall remain confidential and not open to public
'inspection." The words "this Chapter" refers to chapter 20 of the
Texas Limited Sales and Use Tax Act, which has been made applicable to
the collection of local sales and use taxes by section 6 of article
1066c. V.T.C.S. Thus, the confidentiality required by article
20.11(G)(l) would be breached by the filing of copies of sales tax
returns with a city.
SUMMARY
A city subject to the Local Sales and Use Tax
Act may not by ordinance require a vendor to file
with the city a copy of its sales tax return
required by statute to be filed with the
comptroller.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bradley Seals
Assistant Attorney General
p. 1393
Honorable Bob Bullock - Page 4 (MW-408)
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger
Bradley Seals
p. 1394