Untitled Texas Attorney General Opinion ( 1946 )

606
.
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable George Ii. Sheppard
Comptroller of Publib Accounts
Austin, Texas
Dear Siri opinion MO. 0-7361
Re: Wnether trucks stocked
in the city of Aaarill
store tax on the 8ix a
plenished and serviced
same source8 as hi8
At times he will
a ripplies frorol one of
rueks will each be owned by the aanw
at will be operated on a partnership;
.operator of the truck uill receive
s of,tho nut proceed8 and one-third will
go to the truck QPmer- There may be some question
as to the control of these trucke, but under the
present plan, It is the understanding of this de-
partment that they will be controlled by the owner
of the store.
*Question: Will push trucks be suljject to
the Chain Store Tax Law?"
607. 1.
I
Honorable Ceorgs HI Sheppard, Page 2
In response to our request for additional inf or-
mation,on December 3, 1946, you advised us further:
“You recently received from this de art-
ment a request for an opinion as to whet R~ er a
truck making ealre would be subject to the
atore tax. I am furnishing you with informa-
tion secured, by Mr. John U..Yileon( District
Tax Supervisor in Amarillo.
Vhere are two tracks operating In the
Amarillo district. One Is a semi-trailer
making sales in Plrasant Valley, which is
north of Amarillo. The other truck ie a
f&you:;el trailer operating in the City of
.
“The merahandiee is picked up at one
of the stores and placed in the truck in
display form. The truak then proceeds down
the street contacting housewives and other
potential buyers. They, in turn, enter thio
partiaular truak, make purahases of the mer-
chandlee displayed, and pay for same inside
the truck.
“The sal.es are made in the truoks. The
merchandise 1s not delivered by truck drivers
or salesmen to the purchasers in their homee.”
Whether or.not the trucks and trailers in question
are stores ie determined by the definition of the term *store”
aa contained in the Taxae Chain Store Tax Law (house Bill 18,
Ch. 400, Acts J+l+thLeg. 1st C. 3. 1933, Codified aa Art. lllld,
Penal Code), said definition reading as follows:
Vea. i The term tstorel as used in this
Aat, shall be construed to mean and include elly
store or stores or any mercantile eetablisbment
or establiahmeuts not epeaifiaally exempted with-
‘in this Act which are owned, operated, maintained,
or controlled by the 331ne person, agent receiver,
trustee, firm, oorporation, copartnership or aesoc-
iation, either domestic or foreign, in which goods,
wares or merohandiee of any kind are aold, at re-
tail or wholesale,* (Underscoring ours),
.
6aEa
,.
Honorable George H. Yhepperd, Page 3
You etatr in effect that these truoke and trallore
are plaoee, *in which goodah weree and merchandise are eo1d.n
Therefore, if theso vehialse ere wetoreeR end/or %eraentile
letabliehmeqte w then they would constitute uetoree~ within
the meeniag of the Chein Store Tex Len.
The word *etom* was defined by the Commission of ,.
A eels in the ease of Continental Paper Beg Co, v, Boeworth~,
2f 8 8. W, 170, as follower
The term *meraentlle eetabliehment+l is defined in
21 Corpus Jurie 904 as follawe~
*A plea. where the buying and eellin of
ertialre of aerahandlee de an employment f e
aonduated.*
..ds-’
Tha Supreme CourO of the United States in the aaee
of Fox v. Ytendud Oil 00. 294 U.S. 93, 79* LI Ed. 786, in
aonetruin the Chein Store Aot of the State of Weat Virginia,
(whioh de i inea’the word &ore in tha identical phraseology as
the Tetie Gheln Store Aat) in en opinion by Mr. Justice
Cardosa, used the.following lenguago:
*. * + The ‘goods offered for aale are to
be underlltoad es having reference to goods *of
sny kind * and thaplaae at which the eale is
mede ehefl lnalude,not only plaaee that in the
WE:; e erch of men would be designated as
.E ut broadly sneaking. eny meroantile
eetebliehment, whether a rtoic o? something
&e** (Undoreaorlng ours).
Based upon the facts as iven us, and the definl-
tione of the,worde and terms used f n the Cnein Store Act,
together with the aonetruation given b our Courts, we
arrive at the ineeaapeble aonclueion t hat the trucks end
609 ,!
Honorable Georke H. Sheppard, Page 4
~trailera are *merosntile establiehaente in which goode, weres
and marohandlrew are cold. In fact, auoh vehialee 80 equipped
and used. amount,.~.in our opinion, to a atore on wheels. A
store is a atort;: whether mobile or immobile.
“.
W4 trust *@at we hate eatiefaotorb4ly answered your
inquiry.
Yours vary truly
ATTORNEY
OENEUL OF TEXAS
By+*
w. v.. cappart
Aaatstanlr