EMPLOYER UNDER "GROSS BUSINESS" STATUTORY PROVISION
For the purpose of defining who an employer is under 40 O.S. 197.4 [40-197.4](d) (1971), the term " gross business ", in the case of a retail gasoline service station, includes the per gallon taxes levied on gasoline by the United States Government, the State of Oklahoma, and/or any political subdivision of the State. The Attorney General has considered your request for an opinion wherein you set out the following: "The last Legislature passed House Bill 1174 (Chapter 87, Section 197.4, 1971 Session Laws). I respectfully request your opinion as to the following: "In the case of retail gasoline filling stations does the language '"gross business" include the per gallon taxes collected by the retail gasoline service station for the U.S. Government, State of Oklahoma, and/or any political subdivision." Title 40 O.S. 197.4 [40-197.4] (1971) is part of the Oklahoma Minimum Wage Act and provides in subsection (d): " (d) 'Employer means any individual, partnership, association, corporation, business trust, or any person or group of persons, hiring more than ten (10) full-time employees or equivalent at any one location or place of business; provided, however, if an employer has less than ten (10) full-time employees or equivalent at any one location or place of business but does a gross business of more than One Hundred Thousand Dollars ($100,000.00) annually, said employer shall not be exempt under the provisions of this act." In determining what the Legislature intended the term "gross business" to encompass we must look outside the act, there being nothing therein to define the term. Title 68 O.S. 502 [68-502] (1971), provides in part: "There is hereby levied an excise tax of four cents ($.04) per gallon upon the sale of each and every gallon of gasoline sold or stored and distributed, or withdrawn from storage, within the State, for sale or use, to be reported and collected as provided by law . . . ." Title 68 O.S. 506 [68-506] (1971), provides in part: "(a) Every licensed distributor, or any other person coming within the meaning of the definition of a distributor, is hereby made an agent of the state for the collection of the excise tax on gasoline or motor fuel . . . . In the collection of such excise tax by the distributor as such agent, such distributor or agent shall collect and receive such tax, at the rate required by law, as money, property and funds of and belonging to the State, to be held in trust by such agent as funds and property of the State to be reported and paid over to the State as provided by law." It is clear that Sections 68 O.S. 502 [68-502] and 68 O.S. 506 [68-506] require that every licensed distributor, as the State's agents, collect the state excise tax on gas sold to retail gasoline service stations. Since the tax attaches when the gasoline is bought from the distributor, the tax is part of the retail gasoline service station's cost of doing business when passed on to the consumer, and, thus, part of his gross business. There can be no doubt that "gross" in its popular sense means whole, entire, total, whether used in connection with rentals, profits, proceeds, sales, receipts, etc. Cities Service Oil Co. v. Geolograph Co.,254 P.2d 775, 208 Okl. 179. In requiring the state excise tax on gasoline to be part of the retail gasoline service station's gross business, the Legislature obviously intended that the term "gross business" in Title 40 O.S. 197.4 [40-197.4](d) (1971), be defined as "total" business, that being the plain meaning of the word and there being no legislative intent to the contrary. Gross business would, therefore, include the per gallon taxes placed on gasoline by the United States Government and/or any political subdivision of the State of Oklahoma. It is, therefore, the opinion of the Attorney General that your question be answered in the affirmative. For the purpose of defining who an employer is under 40 O.S. 197.4 [40-197.4](d) (1971), the term "gross business", in the case of a retail gasoline service station, includes the per gallon taxes levied on gasoline by the United States Government, the State of Oklahoma, and/or any political subdivision of the State. (Mike D. Martin)
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