Attorney General Opinion JM-0211

JIM MAlTOX Attorney General Supreme Courl Building P. 0. Box 12546 Austin. TX. 76711. 2546 512l4752501 Telex 910/674.1367 Telecopier 5121475-026fm 714 Jackson. Suite 700 Dallas. TX. 75202~4508 2141742-6944 4624 Albmta Ave., Suite 180 El Paso. TX. 799052793 915/53%3464 ,l Texss. Suite 700 Houston. TX. 77002-3111 71312235668 806 Sroadway, Suite 312 Lubbock. TX. 79401.3479 6061747.5236 4309 N. Tenth. Suite S McAllm. TX. 76501-1685 51216624547 200 Main Plaza. Suite 400 Son Antonio, TX. 762052797 512r2254191 An Equal Opportunitvl Affirmative Action Elnplove* The Attorney General of Texas October 12, 1984 Ronorable Bob Bullock Comptroller of Pub1.l.c Accounts L.B.J. State O~fficc! Building Austin, Texas 781’7’4 Opinion No. JM-211 Re: Whether country club fees are subject to the amusements tax Dear Mr. Bullock: Chapter 151 of the Tax Code imposes limited sales, excise, and use taxes on busincwses operating within this state engaged In certain specified activit,Le!s. Legislation enacted during the recently- completed special session designed to increase state revenues to offset increased st.ste expenditures for public education expanded the tax to include “amwement sen+zes.” See Tax Code ch. 151. Acts 1983, 68th Leg., 2nd C.S., ch. 31, art. 7, =534-44. Section 1 of article 7 expands the de:i:!nition of “taxable item” set forth in section 151.010 of the Tax Code to include “taxable services.” Section 2 of article 7 adds section 151.0101 to the code, services” defining “taxable to incblde inter alia “amusement services.” Section’ 151.0028 of the T~:K Code was added by section 3 of article 7 and provides the follov:.ng: Sec. i.51.0028. ‘AMUSEMENT SERVICES.’ ‘Amusement: services’ means the provision of amusemen!: !, entertainment, or recreation, but does not include the provision of educational or health services :Lf prescribed by a licensed practitioner of the lwaling arts for the primary purpose of education or health maintenance or improvement. In response to thwe and other amendments, you ask for our official opinion on the folhwing four questions: 1. An! social membership Initiation fees and/or m~lthly dues at a country club subject to amusemenl::i tax? 2. I:! the answer to question number (1) is ‘no,’ arc’ the additional membership initiation fees and/Jr monthly dues for golf and recreation subject 1:~ tax? p. 950 Honorable Bob Bullock - Page 2 (JM-211) 3. Are guest fees for using club recreational facilities subject, to amusements tax? 4. Are membership initiation fees and/or monthly dues at athletic and sporting clubs subject to amusements tax when the primary activity of tL: club Involves recreational activities which would be subject to tax if an individual admiss:.on fee was charged? We are unable to answer your questions because the legislature has seemingly removed from :he authority of sny official other than you the right to declare what constitutes “amusement services.” Section 151.0101 of the Tax Code provides the following: Sec. 151 .OlOl . ‘TAXABLE ‘Taxable services’ means: -- SERVICES. ’ u (1) amusemfm$ services; (2) cable t,Aevision services: (3) personml services; (4) motor vehicle parking and storage services; and (5) the repair, remodeling. meintenance. and restoraticn of tangible personal property, except: ‘3) aircraft; (B) a ship, boat, or other vessel, other than a spo::ts fishing boat or any other vessel used for pleasure; and (C) the repair, maintenance, and restoratior, of a motor vehicle. (b) fie comptroller shall have exclusive urisdiction to interpret Subsection (a) of this section. (Empha& added). Acts 1983. 68th Leg., 2nd C.S., ch. 31, art. 7. sec. 2. at 534. You have not asked atcut, and accordingly we do not address the constitutionality of subsection (b). On its face. this language appears to contravene artic1.e II, section 1 of the Texas Constitution. p. 951 P’ . Honorable Bob Bullock - Page 3 (JM-211) It has been suggested, hovever, that a court might construe subsection (b) to confer authority on f:he comptroller only to promulgate rules not inconsistent with the stz,tute. In any event, the legislature has clearly indicated its preference that the comptroller make the initial determination as to the proper constructfon of subsection (a). Accordingly, as a matter of policy, we decline to answer your questions until you have fwrished us with your construction of those provisions. The attorney gweral will not as a matter of policy answer a question whose initial determina- tlon the legislatwre has clearly indicated shal.1 be left to the comptroller. Very I truly your I’ll-if- ~A/rwua JIM M A T T 0,X Attorney General of Texas TOM GREEE First Assistnut Attorney General DAVID R. RICHARDS Executive Assistant Attorney Geueral RICK GILPIN Chairman, Opinion Committee Prepared by Jfm Noellinger Assistant Attorney General APPROVED : OPINION COMMITTEE Rick Gilpin. Chairman Cclln Carl . Susan Gatrison Tony Cuillory Jim Hoellinger Nancy Sutton p. 952