Attorney General Opinion WW-0816

MP. Coke R. Stevenson, Jr. Opinion No. WW-816 Administrator Texas Liquor Control Board Re: Whether or not Art. 667, Austin. Texas Section 23;(d) of the Penal Code permits the tax on beer to be refunded when such beer is sold to an Individual who has a contract with a National Military Establishment to operate a concession within the enclosures Dear Mr. Stevenson: of such establishment? We quote from your opinion request as follows: "Article 667, Section 23*(d), of the Penal Code of Texas, provides, to-wit: "'It is not Intended that the tax levied in Section 23 of Article II of the Texas Liquor Control Act shall be collected on beer shipped out of this State for consumption outside this State, or sold aboard ships for ship's supplies, OP on beer shipped to any installation of the National Military Establishment, wherein the State of Texas has ceded police jurls- diction, for consumption by military personnel within said Installation, and the Board shall provide forms on which Distrib- utors and Manufacturers may claim and obtain exemption from the tax on such beer. If any Distributor or Manufacturer has paid the tax on any beer and thereafter said beer is shipped out of this State, for consumption outside this State, OP sold aboard ships for ship's supplies, OP is shipped Into any Installation of the,National Military Estab- lishment as referred to above, for consumption by military personnel therein, a claim for refund may be made at the time and in the manner prescribed by the Board or Administrator. So much of any funds derived hereunder as ma be necessary, not to exceed two per cent (2$ 3 MP. Coke R. Stevenson, Jr., Page 2 Opinion No. WW-816 thereof, Is hereby appropriated for such purpose. The Board may promulgate rules and regulations generally for the enforce- ment of this provision.' "This Department interpreted the above to mean that if the beer Is sold to, Invoiced to, or shipped to, and paid for by an installation of the National Military Establishment, where police jurisdiction has been ceded by the State, that the State tax exemption should be allowed. On the other hand, if this merchandise is shipped to, invoiced to, OP paid for by a civilian con- cessionaire who is operating for individual profit that the State tax exemption should not be allowed. - "The situation in question Is where a concessionaire who is a civilian and is not a memeber of any branch of the Armed Services of the United States has been granted a con- cession to operate a snack bar in a National Military Establishment where police jurisdiction has been ceded by the State, The beer is served at this snack bar located in a bowling alley. The bowling alley is located within the area of the National MlLltapy Establishment. The concession agreement provides that the con- cessionaire shall not sell the products, services., and merchandise of the concession to any person except those authorized to be present in and utilize the facilities of the bowling alley in accordance with applicable military regulations or directives now in effect, "In order to answer inquiries concerning the sale of tax free beer to an individual who holds a concession in a National Military Establishment, we respectfully request your opinion as to the following questions: "1 o Whether OP not Article 667, 23*(d), of the Penal Code permits the tax on beer to be refunded when such beer Is sold to an individual who has a contract with a Rational Military Establishment to operate a concession within the enclosures of such establfshment? Mr, Coke R. Stevenson, Jr., Page 3 Opinion No. WW-816 c" "2. Or, is the criterion for tax exemption not whether the purchaser of the beer is a civilian, but, rather, whether or not the State of Texas has any jurisdiction over the place where the beer is ultimately sold? "These questions are not the subject of any pending litigation and your opinion is necessary in order that we may properly advise a concessionaire operating on a Rational Military Establisbment where the State of Texas has ceded police jurisdiction." A careful examination of the terms of Art.. 667, Sec. 2& (d), Tex.Pen.Code, reveals no basis for your departmental interpretation. It is not required that the beer be sold to a military Installation, but only that it be shipped tothe installation for consumption therein by military personnel. This proposition is clarified somewhat by reference to the second sentence of the questioned article, which states, in part: "If any Distributor or Manufacturer has paid the tax on any beer and thereafter said beer. D .is shipped && any installation. . . a claim for refund may be made." As pointed out by Attorney General's Opinion No. W-354, three requirements must be met before refunds may be made in cases of this nature: 1. The beer must be shipped Into an installation of the National Military Establishment; 2. police jurisdiction ever the Installation in question must have been ceded by the State of Texas; and 3. the beer must be intended forconsumption by military personnel within the Installation. According to the facts set forth in your letter, all three requirements have been met, Accordingly, refund should be made. SUMMARY Under the terms of Article 667, Section 234 (d), Tex.Pen.Code, the Texas Liquor Control Board should make refund of taxes paid on beer shipped to a civilian concessionaire within a Mr. Coke R. Stevenson, Jr., Page 4 Opinion No. WW-816 military installation wherein police jurisdiction has been ceded where such beer is intended for consumption by military personnel within the installation. Yours very truly, WILL WILSON Attorney General of Texas JNP:cm APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman William T. Blackburn John Lawrence Hargrove Robert A. Rowland REVIEWED FOR THE ATTORNEY GENERAL By: Leonard Passmore