Untitled Texas Attorney General Opinion ( 1944 )

GENERAL
Hon. Gee. H6,Sheppard
Comptroller of Fublic Accounts
Aw tin, Texas
Dear ~78r.
Sheppard8 Opinion No. 04068
Re: Under the faet6 EUhnitted, i6
the agent of an oil company a %otor
oarriar" or "contract oar~ier6.liahle
for th6.gross r606ipt6 tu provid6d in
Article 7OGCb, R.C,S. of TEX~E?
YOU present for the Opinion Of thi6 departmsolt tWo qUOEtiOX,E
which appear atthe oonolusioa of your letter, whio~hwe quot6 in full a6
fOl1OlI68
“Articl6 7066b, Sec. (a) prolridEE~a6fOll~61'
:-~*V,&oh individual6 partnership, company, assooiatl6a. or oorporatiofedoing
:'bue%&666a6 a "mator bu6 company" as defined in Chapter'270,~AoLobBoylar
Seasion of the Fortieth Legislature, as amended bythe Aot6 of 1922; -Et
Called Se66ion of the For+first Legislature, Chapter 78,'or a6 saotor
oarrier" or "contract oerriers as defined in Chapter 277, Acts Regular
Session.of the Forty-seoond Legislature, over and by u6e of the pub110
~highwaysof this State, ,shallmake quvterly'on the first day of January,
April, July. and Ootobar of eaoh year, a report to the Comptroller, under
oath, of the individual, partnership, company, assooiations~or oorporation ,'
by its president treasurer; or Eeoretame, sharing th6 gro66,a6Ionntr6eOiW
ed from intrastaEe business done within thie Stat6 in the payment of
charges for transporting persons for oomR6ncrationand any freight 6r oo6n
modify for hires or from other 6ouroe6 of rwsnu6 reoslv6d fro61intraEtat.6
busin66s within this Stat6 during the qUart6r next pmo6ding* Said i+irid- ,,
ual, partnership, company, assooiation,,or corporation at the'&se Of
making said reports, shall pay to the State TmaEUmr an OOOUpatiOn taX
for the quarter beginning on said date aqua1 to trro,alid tW-tenth6 (2.2)
per oent Of said gross reOeiptS* as shown w said report. Provided, hw6v6r.
carriers of persons or property who ar6 required to pay an intangible
assets tsx under the laws of this State, are hereby exempted from the pro-
vision6 of this Article of this Aat.*
"IIIdefining Hotor Carrierand Contraot C-Wrier6 Soor la of Art. Sllb
&6+X6:
?;On,COO. !I.Sheppard, page 2 (C-6068)
"*Provided, however, that the term "Motor Carrier" and the term "Ccn-
traot Ca,riera as defined in t&e preceding section shall notbeheld~ ,'.~'
to ineltder su&sec, (.s) of the s- se&ion 6+ &ticls ... pm&d&~?~T~.‘i ‘.- ::.,A.:?:.
'Where merely incidental to a regular, separate, fixed gnd established
business, other tban a transportation business, the transportation of
employees, petroleum products, and incidental supplies used or sold in
connection with tilewholesale or retail sale of such petroleum products
fromthe refiner or place of production or place of storage to the place
of storage or place of sale and distribution to the.ulti,mate.nousumers~
in a motor vehicle owned and used exolusivaly by the marketer-or 'refiner,'
or ouned in whole or in part and used exolusively by the bonarffde oon-
gignee or agent of such single marketer orrefiner, as wellas :.shere
merely incidental to~~isliable for,the~gross receipts tax
.->
:,.
as .pr,rovjded;f&&n &rt.',7;C66b.'
,.;~..aPor
~,.I ~,ol~r;co~eniezlce~~you-~ill
find.attaoh&eopy of.contract form be-
tween;the ;oi.l~mpanyand.:srpent~?
L ..!~. :~.;...‘- r _~,y,.:,,<. ” (
Supplementing your letter you submit certain da&consisting of
"~&olesale CESSION Agent's Contract," riders to Cosmission Ap@s
Con~trgct,~"Consi~eg~.~Agre.ement;,'~and
whqrt.1~designated 48 "Sdnedtie A,"
and letter attached thereto, in use by oertain oil companies coreringthe.
,
- -
Hon. Geo. H. Sheppard, page 3 (O-6068) -.. : I <.~
operations of their distributing agents, all of which are to be considered
in oonneotion with this opinion.
.'
, hour problem is to determine whether or not the transportation of
the petroleum products~under the circumstances;;y
.-,:!:,,.'
,':I...
: ',:
"Stat&es uhieh referto oth6r statutes and make $hemapplioable to the sub
Sect of legislation are.oalled .*referencestafuteq;t and.are a familiar amd
valid mode of legislation" The-general rule is that when a statute is adop
ted by a,speoifio descriptive zsPerence,ltihe:,ad?~~oa takes the statute as
it exists at that time;.and.,thesubsequent.~n~~tr.thereoP would not'be
within the terms of the-adoptingact. " l '"w.:,: I .;': >I.~.
.:
..,
Hnving,thas~~bon~luded,'ne.rprss
to the more&f&cult question as
to whether or nctdn p9v~c~ent .theLegtdIatuve @&nded.that this tax be dm-
posed only -apo*,*motorcarriers" and ~~~ontrarrt~asrrie~?~~su~jeot to regula--
ssion under.~e,ie~ti~ns.~rid
L%m$i
tion by the ,Railroad,.C by Chr 277, Aete
of the 42nd LegislatureN in,whioh the erigin&definihionssre feund" Ris Poe
constrained to the view that the Legislat~.diP.not.~iotend by this referenoe
to make the imposition of the tsx dependent upca whether or not such "motor
carrier" and~woontraat.carrier" as therein defrnsd mere subjeat to regulation
by the Railread'Cemmiasi'on~ There.is-no,Ie~s.sla~~ve~~~esaion in either a&
making the one .dependentupon the other; ~otie-:is.~a-~regn~atory
measure" the
other a taxing measure. The reference inthe tsxingaotto the regulatory
act for a definition oP,"motcr carrier" and "contraat oarrier is the same as
if these definitions had-been incorporated in the taxing aot direct instead
of by reference. Had this been done, obrriouslyit oould not be logically
argued that sn amendment subsequently passed to the regulatory rot l&iting
the preexisting definition of "motor carrier" and "oontraot carrier" would
also operate to limit these same terms as defined in the taxing pot" As
stated above; the.aots oover different subjeots, one regnlat%e8;:%he~.W&er
taxation. They are not in pari materia" We think the real test is whether
or not such "motor oarrier" or "contract carrier," p defined in the taxing
act,,transports propepty for compensation or hire.over any public highway in
this State where the transportation is over a highway between two or more in-
corporated cities, towns, or villages"
Liability for,the tax imposed by virtue of Article 7066b, eupra,
must first depend upon whether or not the "motor carrier" or "conlraot oar-
rier" transports for compensation or hire.. Your first question, read in
connection with the preceding statement made in your opinion request, that
the agent of one of the major oil companies with his ovntruak hauls petro-
leum products from the oil oompaqy~s refinery to his wholesale lmlk station,
and the oil company pays %&I agent for such hauls, at the same rate it would
pay some other coatraor motor carrier, presupposes that such aa agent is in
Hon. Gee. H. Sheppard, page S(O-6066)
effect transporting for compensation or hire. Such being the oases it is
our oonolusiou that the gross reoeipts received by such agent would be
subject to the tax imposed by virtue of this article of the statutes. More
clearly would such au agent, who hauls petroleum produots from the refinery
to other parties, othorn than his om concern, andreceives oompensatiou or
hire therefor, is engaged in ~U%SpQr~tiOn as a "oontraot oarrier," and the
receipts received by him in such oprations would be subject to the tax im-
posed by virtue of this statute. If we are correot in oux asswption that
such transportation is oanpensatod for either direotly or indireotly by an
adjustment ia the prioe,oP the product so transported from the refinery to
the agent's bulk sales station, and where such agent transports for others
for aompensation or hire both operations would be subject to the gross
rsoeipts tax fixed w th2s article of the statutes.
In othof words, en agent as designated in your letter, in the
language of the foregoing definition of scontraot oarrier" or "motor car-
rier," is a "person, firm, or corporation"; suoh agent "owns, oontrols,
manages, operates or OWSM to be operated a *motor propelled vehiole used
in tramporting property for compensation or biro between twc.er more
~inoorporated cities, towns, or villages," as distinguished from exclusive
operation within oit+os or towns. We think such operation falls squarely
vithin the purview of the statutory definition, whether treated as a
smotor oarriers or sobntraot carrier,! and henoe, as above stated, is sub
jeot to thetas imposed by Artiole 7066b, supra.
We think it fair to say, h-er, that the question presented
by you is one of first impression, and it has notboen definitely passed
upon ly the courts of our State? but whatever doubt exists we feel compelled
to resolve itin favor of the tax.
v&y truly yours
ATTOBBEIIGElWHAL OF TEXAS
Py /s/L, P. Lollar
L. P; LolIar
Assistant
APP3Ovi3DSEP 22, 1944 Approved
/d Grover Sellers opinion Comaittee
ATTORITEYGEiVERALOF TEXAS