Untitled Texas Attorney General Opinion ( 1944 )

OFFICE OF THE Al-T;;zZW’,~yfNERAL OF TIZXAS -. GROVER PELLERS ATTORNEY GENERAL : &nokablo Geoige H. Shoppar& i Conptmllsr of Public Accounts hustln 11, Texas ,.., E. n the Lvonc star; Cment Cozyor of trniform Straight 3111 of he mmner of oar billing suoh ‘in from the f.0.b. their r8.~1s point nwrest our mill to’ the interstate deatinatlon %eadhe&d~~. .We invoice the railmy at a price per barrel f.o.b. our ~$11 or f.o.b. their roils Eouston and/or Dal- las , Tt?zss. *‘:do prloo and involoc sme f .9.b. ocrs fit sn +trastnto >aint. .- honorejblo George Ii. .Sheppard, pa@ 2 , “t’;ie are of. the opinion that this type of ship- ment is interstate on2 not subject to the State : Cement Tax,; hoviever, we ore desirous of your eat&% as to’ vrtlether or not you conoy in our viwfs in the matter. * “1 am attuching hereto sample aopy of the i.one Star Cement Corporation’s invoice to the! TWO Railroad Company, Lake Charlea, Louisiana, also sample copy of the bill of lading to the same railroad and the same destination. “I will appraoiato it if you ~111 f\u‘nish me with your legal opinion. as to the tax on such a transaction;* In opinion Ro. O-5843, approved April 25, 1944, requested by you, this ,department oonstrucd subsection 41, &rticlo 7047, V.A. C.S., 1925, as amaonded, not to warrant the imposition of the tax *upon any interstate sale or transection”.’ The test is whether or not the shipment in question under the above factual situation con- atltutcs an interstate sale or transaction. Tha cement is ordered Prom the Texas manufacturer by the Louislana agent of the carrier vendee for delivery to the vendnc at a point .in Louisiana, but invoiced and rlelivered to the vendee’s rails f.o,b. a point in Texas. The b3.11 of lading is issued for an interstate ship;lGnt of the cement but freight charges are Wead- head”, slncc the vendee is also the common carrier receiving ,the cement for delivery to a pOiAt outside of Texas. Herr? the vendee occupies a dual rols of ‘purchaser and ooimnonoarrier. Although the physical distribution of the cement 10 to the vcn3ee in Texas, nevertheless the v%nace receives the dG- livery in its role of *~corricr*. 3hen the cement is finally de- livered IA Louisiana, the vendee reimlvus it in tbe role of *lpur- Ohaaer~~. By the substitution of any thlra party as the consignee in Louisiana; the shipaont. is olearly interstate anil not subject to the tax. Renoc the above faot situation develops an intcrsta% 8~10 or transaction an& th%r,efore .not ‘subject to the occupation tlcc. Very truly yours, ATTORNEYGEH3:RhLOF TEXfiS