Untitled Texas Attorney General Opinion ( 1950 )

. . THE A NEYGENERAL OFTEXAS December 8, 1950 Hon. Robert S. Calvert Dpinion No. V-l 129 Comptroller of Public Accounts Austin, Texas Re: Application of the annual shooting gallery tax to shoot- ing galleries operated in Dear Mr. Calvert: connection with carnivals. You request the opinion of this office upon the questions presented in your letter of October 27, 1950, as follows: “Article 7047, Subydivision 35, as amended, lev- ies an annual State Tax on Shooting Galleries. ‘“Article 7047, Sub-divisibn 25(b), as amended, levies a quarterly tax on carnivals. “A ruling by this Department has held that a shoot- ing gallery operated in connection with a carnival is not covered by the carnival tax but owes the separate tax as a shooting gallery. “Some of our field men, whose duty is to collect this tax, are of the opinion that a shooting gallery oper- ating in connection with a carnival is covered by the carnival tax and does not owe the shooting gallery tax. “‘In view of the conflicting opinions on this mat- ter I would appreciate your advising me whether the quarterly tax paid by a carnival would cover a shooting gallery, or whether the shooting gallery would pay the separate tax. ‘“Would your answer be the same if the shooting gallery was owned by the carnival owner or if it was not owned by the carnival but operating with the carni- val on a concession basis? ” Subdivision 35 of Article 7047, V.C.S., reads: “‘From every person, firm, association of persons, or corporation, owning, or operating a shooting gallery at which a fee is paid or demanded, there shall be col- lected an annual tax of Fifteen Dollars ($15):’ Hon. Robert S. Calvert, Page 2 (V-1129) -,. Subdivision 25(b) of Article 7047 is as follows: “From every carnival showing or exhibiting in this State, there shall be collected in advance a quar- terly tax of Fifty Dollars ($50); provided that from every carnival showing or exhibiting in only one coun- ty in this State in any calendar year there shall be col- lected in advance the quarterly tax of Fifty Dollars ($50) until One Hundred Dollars ($100) has been paid, whereupon no additional tax shall be collected during the same calendar year so long as such carnival has shown in only one county during such calendar year; it being the purpose hereof to require carnivals showing in only one county in any calendar year to pay not more than One Hundred Dollars ($100) per year.” It is significant to note the language employed by the Legislature in these taxing statutes. By express language the shoot- ing gallery tax is collected from every person, firm, association of persons, or corporation owning or operating a shooting gallery at which a fee is paid or demanded, and the carnival tax is collect- ed from every carnival showing or exhibiting in this State. The term “carnival” has an extended signification, and comprehends a variety of amusements. As defined by Webster’s New International Dictionery (2nd Ed. 1938) it means “an amuse- ment enterprise consisting of sideshows, vaudeville, games of chance, merry-go-rounds, etc.; also, an association for conducting such an enterprise.” It may be conceded that its signification is broad e- nough to cover exhibitions of every kind and character from which amusement is derived, including a shooting gallery. A shooting gal- lery likewise has a well understood and distinct meaning in its com- mon acceptation and is defined by the same edition of Webster’s New International Dictionary as “a range, usually covered, with targets for practice with firearms. ” A carnival may be complete in all par- ticulars under the foregoing definition without a shooting gallery. Conversely, a shooting gallery may, and often does, operate inde- pendentPy and without any connection whatsoever with a carnival. In the enactment of the above statutory provisions per- taining to shooting galleries and carnivals, the Legislature was priv- ileged to make this classification and render both subject to taxation. They both may be reasonably classified as places of popular amuse- ment distinct and separate from each other, although a shooting gal- lery may be one of the attractions of a carnival. The State occupation tax was first imposed on shooting galleries in 1897, and on carnivals in 1915. The Legislature last amended both Subdivision 25(b) and Subdivision 35 of Article 7047 Hon. Robert S. Calvert, Page 3 (V-1129) in 1943, in the same amendatory act (Acts 48th Leg., 1943, ch. 372, p* 654), There is nothing in this act or any prior acts to indicate a legislative intent to exempt shooting galleries if operated in con- nection with a carnival. In the absence of such a legislative intent, either expressed or implied, we think the ruling of your Depart- ment is correct and both are subject to tax. Our ruling would be the same whether the shooting gal- lery was owned by the carnival owner or by someone else, and whether it was operated by the carnival or on a concession basis. SUMMARY A shooting gallery operated in conjunction with a carnival, either through ownership by the carnival or on,a concession basis, is subject to the tax imposed by Subdivision 35 of Article 7047, V.C.S. Very truly yours, PRICE DANIEL Attorney General APPROVED: By ti* L. P. Lollar W. V. Geppert Assistant Taxation Division Everett Hutchinson Executive Assistant Charles D. Mathews First Assistant