Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
December 14, 1978
JOHN L. HILL
Attorney General
Honorable Bob Bullock Opinion No. H- 12 82
Comptroller of Public Accounts
L.B.J. Building Re: Whether a city adopting
Austin, Texas 78774 the local sales and use tax after
October 1, 1979, may impose that
tax on the residential use of gas
and electricity.
Dear Mr. Bullock:
You have asked for an interpretation of article 1066q section 4A,
V.T.C.S., which governs the exemption from the local sales and use tax of gas
and electricity for residential use. Article 1066~ permits cities to adopt a one
percent local sales and use tax by holding an election for that purpose. As
originally enacted, article 1066c, V.T.C.S., imposed a tax on sales of gas and
electricity for residential use. V.T.C.S. art. 1066c, 5 2B; see Tax.-Gen. art.
20.04(R). The sixty-fifth legislature amended article 1066sy adding section
4A, which reads in part:
Sec. 4A. Effective October 1, 1979, there are
exempted from the taxes imposed by this Act the
receipts from the sale, production, distribution, lease
or rental of, and the use, storage, or other con-
sumption within the city of gas and electricity for
residential use within a city adopting the taxes
imposed by this Act unless prior to May 1, 1979, the
governing body of the city, by a majority vote of the
membership of the governing body, votes to continue
the taxes authorized by this Act on the sale, produc-
tion, distribution, lease or rental of, and the use,
storage, or other consumption of gas and electricity
for residential use. At any time before or after
October 1, 1979, the governing body of a city that has
adopted the tax authorized by this Act may, by a
majority vote of the membership of the governing
body, exempt from the taxes imposed by this Act the
receipts from the sale, production, distribution, lease
or rental of, and the use, storage, or other consump-
tion within the city of gas and electricity for
P. 5063
i.,
Honorable Bob Bullock - Page 2 (H-12 82 )
residential use. The governing body of a city that has
adopted the tax authorized by this Act and provided for the
exemption authorized or required by this section may, by a
majority vote of the governing body, reimpose the taxes on
the sale, production, distribution, lease or rental of, and the
use, storage, or other consumption in the city of gas and
electricity for residential use.
H.B. No. 1, Acts 1978, 65th Leg., 2d C.S., ch. 2, S 6, at 6-7. You ask whether a city
which first adopts the local sales and use tax after October 1, 1979, may impose
that tax on the residential use of gas and electricity.
As of October 1, 1979, the amendment exempts the residential use of gas and
electricity from the tax imposed under article 1066~ unless the city fits within one
of the exceptions provided in section 4A. These exceptions are as follows: (1) Prior
to May 1, 1979, its governing body votes to continue the tax. (2) The governing body
of a city which has adopted the local sales and use tax and exempted the residential
use of gas and electricity reimposes the tax by majority vote. A city which does
not adopt the local sales and use tax until after October 1, 1979, cannot fit within
the first exception. Nor can it in our opinion fit within the second exception.
After October 1, 1979, the residential use of gas and electricity will be “exempted
from the taxes imposed by this Act, ” i.e. article 1066c, V.T.C.S. Cities adopting
the provisions of article 1066~ after October 1, 1979, will not be able to impose the
tax on sales of gas and electricity for residential use. Thus they cannot become
cities which have adopted the local sales and use tax and then exempted the
residential use of gas and electricity. Their exemption will come about by
operation of law rather than the city’s action. Moreover, cities which have never
had the tax cannot be said to reimpose it, since “reimpose” means “to impose
again.” Webster’s Third International Dictionary (emphasis added). -.+ Cf. Lowr v.
Aetna Life Ins. Co., 120 S.W.2d 505 (Tex. Civ. App. - Dallas 1938, writ dmm’d
(definition of reinstate). ln our opinion, section 4A of article 1066~ gives cities a
limited time in which to impose a tax on the residential use of gas and electricity.
Cf. Attorney General Opinion H-loll (1977) (time limit for counties to qualify for
Eefits of National Flood Insurance Program).
SUMMARY
Cities that first adopt the local sales and use tax after
October 1, 1979, may not impose the tax on the residential
use of gas and electricity.
Attorney General of Texas
P. 5064
Honorable Bob Bullock - Page 3 (H-12 82 )
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
jsn
P. 5065