Attorney General Opinion WW-1468

November 13, 1962 Mr. Robert S. Calvert Opinion No. W-1468 Comptroller of Public Accounts Austin, Texas Re: When the occupation tax on merchandise brokers lg.O1(2j,%%2A Taxation-General, wis first levied, and the period of time for which you should col- Dear Mr. Calvert: lect it. You ask us when the occupation tax on merchandise brokers, now Art. 19.01(2), Title 122A, Taxation-General, was first levied, and the period of time for which you should col- lect it. This tax was first levied in 1931,l beginning May 26, 1931. Until January 1, 1942, It was collected b 8 the Tax Col- lectors of the respective counties of the State. The tax imposed for each year beginning January 1, 1942, and since, together with the tax delinquent for any of the years 1931 through 1941, is to be collected by you.3 In 19314 the Legislature first im osed this tax by amending Subdivisions 7 and 12 of Art. t 70 7 of the Revised Civil Statutes of 1925 to read as follows: lActs 42nd Leg., 1931, Reg.Sess., Ch. 212, p. 355, Sec. 1, subd. 7 and 12. This Act amended subd. 7 and 12 of Art. 7047, of the Revised Civil Statutes of 1925. 2Art. 7050, 7052, 7053 and 7054, Revised Civil Statutes of 1925, and Art. 7047a-20, Sec. 7, Vernon's Civil Statutes. 3Acts 1941, 47th Leg., Ch. 631, p. 1393, Sec. 1, codified by Vernon as Art. 7047a-20, Sec. l-8. 4Note 1, supra. Mr. Robert S. Calvert, Page 2 (Opinion No. WW-1468) Subdivision 7: "From every person, firm, association of persons, or corporations, dealing In bonds, and/or stocks, either exclusively or in connection with other business, the sum of Fifty Dollars ($50.00) for each town or city in which such person, firm, asso- ciation or corporation maintains an office. For the purpose of this Act, every person, firm, association of persons, or corpora- tion whose business It is to negotiate purchases or sales of stocks, bonds, exchange, bullion, coin, money, bank notes/promissory notes, produce or merchandise, or anything else for sale, for others, shall be regarded as a broker." (underscoring added) Subdivision 12: "From every person, firm, association of persons,or corporation, following the business or occupation of merchandise broker and/or commission merchant, either at wholesale or retail, in cities or towns of twenty-five thousand (25,000) or less population, an annual tax of Fifteen EoLlars ($15.00); and in cities of more than twenty-five thousand (25,000) population an annual tax of Twenty-five Dollars ($25.00). A commission merchant in the meaning of this Act is every per- son, firm, association of persons, or corporation, receiving country produce, horses, cattle, sheep, hogs, grain, corn, hay, lumber, shingles, wood, coal, goods, wares and merchandise or anything else for sale, to be accounted for to the owner when sold and charging a commission therefor. The provision of this Section shall not be construed as taxing the traveling salesmen." (underscoring added) Subd. 12 defines "commission merchant" but does not define the term "merchandise broker". However Subd. 7 In its second sen- tence does define a broker of merchandise. The definition of a broker who negotiates purchases or sales of merchandise con- tained in Subd. 7 refers to "merchandise broker" who is taxed Mr. Robert S. Calvert, Page :3, (Opinion No. WW-1468) by Subd. 12 of this same Act. See also Attorney General Opinions Nos. o-4287 (1942) and O-3999 (1942). A 1943 Act of the Legislature5 by its Sec. 6 repealed Subd. 12 of Art. 7047 of the Revised Civil Statutes of 1925, and by its Sec. 2 amended Subd. 7 of Art. 7047. This Act, insofar as pertinent to this opinion, continued in effect the occupation tax upon merchandise brokers but in a lesser amount. In its pertinent portion the 1943 amendment levies an occupation tax upon, II . . . every person, acting for himself or on behalf of another, engaged in the business or occupation of a Broker or Factor, whether he is principally engaged in such business or not, there shall be collected Ten Dollars ($10) per year. A 'broker' or 'factor,' for the pur- pose of this subsection, is every person who, for another and for a fee, commission or other valuable consideration, . . a negotiates pur- chases or sales or transfers of . . . produce and merchandise of any kind; whether or not he receivers and delivers possession thereof; . . .' In 1959 the Subd. 7 of Art. 7047 F gislature expressly repealed Sec. or but enacted substantially the same pro- visions as Art. 19.01(2) of this 1959 law.7 The tax payable by merchandise brokers will be con- trolled by the rate specified in each of the foregoing Acts and the span of time during which each of those Acts was effective. SUMMARY The occupation tax on merchandise brokers was first levied effective May 26, 1931. %kts 48th Leg., Reg.Sess., 1943, Ch. 372, P. 654. 6Acts 56th Leg., 3rd C.S., Ch. 1, P. 187, Sec. 7, Note 27 (at pp. 374-375) * 7Art. 19.01(2), Title 122A, Taxation-General. Mr. Robert S. Calvert, Page 4 (Opinion No. WW-1468) You should collect this tax imposed for each year beginning 1942 and since, together with the tax delinquent for any of the years 1931 through 1941. The amount varies for different periods of time. Very truly yours, WILL WILSON Attorney General of Texas By: 1,8 lLi%J W. E. Allen Assistant Attorney General WEA:pw APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Frank Booth Sam Stone Paul Phy L. P. Lollar REVIEWED FORTHE ATTORNEY GENERAL By: Leonard Passmore