Untitled Texas Attorney General Opinion

GENERAL
Honorable Robert S. Calvert Opinion No. M-428
Comptroller of Public Accounts
State Capitol Re: Whether bequests under
Austin, Texas '7871.1 a will to towns of
Edirburg, Johnson County,
Indiana, and Waco,
McLennan County, Texas,
for the purpose of main-
taining cemeteries are
exempt from inheritance
Dear Mr. Calvert: tax.
Your letter directed to this office requesting a
written opinion reads, in part, as follows:
11 necedent.7. died testate a resident of
MELennaE County; Texas, on August 16, 1967,and
all the required reports under the Inheritance
Tax Law have been made and filed with this
Department.
"Under the terms of the last will and testament
of the deceased, bequests of five per cent of
the income from the . ,47ecedent's. . .
Foundation were made to ia-& of the d ollowing:
"(1) 'Town of Edinburg, Johnson County,
Indiana, for the purpose of mainte-
nance and upkeep of the Rest Haven
Cemetery, Edinburg, Indiana.'
“(2) 'City of Waco, McLennan County, Texas,
for the purpose of maintenance and
upkeep of Oakwood Cemetery, Waco,
Texas. 1
"Your Department has passed on similar questions
in Opinions M-110 and ~-228. Therefore, we wish
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.
Hon. Robert S. Calvert, page 2 (M-428)
to be advised whether or not these bequests
are exempt as provided under Article 14.015
of Chapter 14, Title 122A, Taxation-General."
You have furnished us with a copy of the last will
of Decedent, together with a letter from the Attorney
representing his estate, which enclosed a Xerox copy of
Article 2, Chapter 8, Title 1, of the Administrative Code
of the City of Waco covering Municipal Cemeteries. This
Article reads in part as follows:
"Article 2.-Municipal Cemeteries.
"SECTIONS l-805. LOCATIONS AND NAMES.
There shall be four Public Cemeteries under
the control of the City of Waco, viz:
~* * * +
"SECTICN l-805.3. 'OAKWOOD CEMETERY.'
Located south of the City of Waco, at the
terminus of South Fifth Street, about onfl
and a half miles from the public square.
Article 14.015, Revised Civil Statutes, Title 122A,
Taxation-General, reads, in part, as follows:
"Art. 14.015 Exempt Transfers
"The inheritance tax imposed by Article
14.01 shall not apply to the following trans-
fers of property:
****
"(3) Public Use. Property transferred to
or for the use of thftsstate or any town therein
for public purposes.
The Administrative Code of the City of Waco, supra,
provided for four public cemeteries (one of which is
Oakwood Cemetery), and places all four of them under the
control of the City of Waco, which makes it the duty of
the City to maintain them as public cemeteries. Main-
tenance of a public cemetery is certainly for a "public
use" and "public purpose." It follows that the bequest to
the City of Waco for the maintenance of this cemetery is
one which comes squarely within the provisions of Article
14.015, Section 3, supra, as being a transfer to a town
of this State for a public purpose or public use. It
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Hon. Robert S. Calvert, page 3 (~J.+28)
relieves the City of Waco of a burden it would otherwise
have to shoulder with City funds were it not for this bequest.
We therefore hold it to be an exempt transfer.
The transfer, on the other hand, to the Town of Edinburg,
Johnson County, Indiana, is not an exempt transfer because
it is not a transfer to or for the use of a town within this
State asprovided in Article 14.015, Vernon's Civil Statutes,
?Z?% any other exempt purpose. Article l&.015(3) expressly
contemplates an exemption for property transfers 'for the
use of this state or any town therein . . . (Emphasis added)
SUMMARY
A transfer to or for the use of a town within
this State for public purposes is an exempt
transfer. A transfer to or for the use of a
town which is not a Texas town is not an exempt
transfer.
truly yours,
I
Prepared by Fisher A. Tyler
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Harold Kennedy
James McCoy
Fielding Early
Bob Lattimore
Hawthorne Phillips
Executive Assistant
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