TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00646-CV
Universal Frozen Foods Company, its Successors -in-Interest, ConAgra, Inc. and Lamb
Weston, Inc.; and Universal Foods Corporation, Appellants
v.
Carole Keeton Rylander, Successor-in-Interest to John Sharp, Comptroller of Public Accounts
of the State of Texas; and John Cornyn, Successor-in-Interest to Dan Morales, Attorney
General of the State of Texas, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. 98-01956, HONORABLE SCOTT JENKINS, JUDGE PRESIDING
This appeal involves a challenge to the additional tax component of the Texas franchise tax.
See Tex. Tax Code Ann. ' 171.0011 (West 2002). Universal Frozen Foods Company (AUniversal@), its
successors-in-interest, ConAgra, Inc. and Lamb Weston, Inc., and Universal Foods Corporation,
challenged the validity of the additional tax and asserted, in the alternative, that the amount on which
Universal was taxed was improper. After the parties filed competing motions for summary judgment, the
trial court denied Universal=s motion and granted summary judgment in favor of Carole Keeton Rylander,
successor-in-interest to John Sharp, Comptroller of Public Accounts of the State of Texas and John
Cornyn, successor-in-interest to Dan Morales, Attorney General of the State of Texas (collectively the
AComptroller@). We will affirm the district court=s judgment.
BACKGROUND
In 1991, the Legislature amended the franchise tax statute primarily to add the earned
surplus component to the franchise tax calculation. As part of the same amendment, the Legislature
constructed the additional tax which forms the basis of this dispute. The franchise tax is an excise tax levied
for the privilege of doing business in Texas during the year for which the tax is paid. See General
Dynamics Corp. v. Sharp, 919 S.W.2d 861, 866 (Tex. App.CAustin 1996, writ denied). After the 1991
amendment, the Comptroller may assess a corporation=s franchise tax liability based either on that
corporation=s capitalization or its earned surplus generated in the previous accounting year. See Tex. Tax
Code Ann. '' 171.110, .1532 (West 2002). Although the amount a corporation owes for the franchise tax
is measured by that taxpayer=s financial circumstances during the previous accounting year, the earned
surplus component of the franchise tax is not considered a corporate income tax. See General Dynamics,
919 S.W.2d at 866. The corporation is taxed for the privilege of doing business for the upcoming year
based on its performance in the previous year. Id.
Like the franchise tax, the additional tax is a privilege tax. See Rylander v. 3 Beall
Brothers 3, Inc., 2 S.W.3d 562, 571 n.9 (Tex. App.CAustin 1999, pet. denied). The additional tax is
imposed on a corporation that is no longer subject to the taxing jurisdiction of the state in relation to the
earned surplus component of the franchise tax. Id. at 565; Tex. Tax Code Ann. ' 171.0011(a). The
additional tax equals 4.5% of the corporation=s net taxable earned surplus computed for the period
beginning on the day after the last day for which the franchise tax on net taxable earned surplus was
assessed and ending on the date the corporation is no longer subject to the taxing jurisdiction of this state.
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Tex. Tax Code Ann. ' 171.0011(b). The additional tax is designed to reduce tax revenue losses caused by
corporate reorganizations and mergers. Beall Brothers, 2 S.W.3d at 565.
Universal raises two issues in this appeal. Initially, Universal attacks the validity of the
additional tax, claiming that it taxes fiscal year taxpayers differently than calendar year taxpayers. If we
overrule its first issue and find that the additional tax is valid, Universal asserts, in the alternative, that the
Comptroller erred in assessing its additional tax liability based on an earned surplus that was not attributable
to Universal, but rather to Universal=s parent corporation.
In order to understand Universal=s complaints, a brief description of Universal=s corporate
structure is necessary. Universal was a wholly owned subsidiary of Universal Holdings, Inc., which itself
was a wholly owned subsidiary of Universal Foods Corporation. Of these three corporations, only
Universal conducted business in Texas. Universal ceased to do business in Texas on August 1, 1994, after
it was sold to an unrelated corporation and then merged into one of the purchasing corporation=s
subsidiaries.1 After the merger, Universal was no longer subject to the earned surplus component of the
franchise tax. Accordingly, Universal became liable for the additional tax on its earned surplus, measured
from the day after the last day of its previous accounting year until August 1, 1994. See Tex. Tax Code
Ann. ' 171.0011(b).
1
The purchasing corporation that then merged Universal with its own subsidiary is ConAgra, Inc., a
party to this lawsuit. The company with which Universal merged is Lamb Weston, Inc., also a party to this
lawsuit.
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DISCUSSION
Universal=s first issue appears to be controlled by Rylander v. 3 Beall Brothers 3, Inc., 2
S.W.3d 562 (Tex. App.CAustin 1999, pet. denied). That case required us to examine the newly amended
franchise tax statute and determine whether the additional tax was constitutional. Beall Brothers raised the
exact issues now asserted by UniversalCthat the operation of the additional tax requiring fiscal year
taxpayers to pay more than calendar year taxpayers rendered the additional tax unconstitutional. In Beall
Brothers, we carefully examined the constitutional principles of equal protection and equal and uniform
taxation. We concluded that because the additional tax was rationally related to a legitimate governmental
purpose and it applied equally and uniformly to all taxpayers, it withstood Beall Brothers= equal protection
and equal and uniform application challenges. We arrived at this conclusion primarily because all taxpayers
are treated equally, as a class, regardless of whether they are fiscal or calendar year taxpayers. Regardless
of the election a corporation makes concerning its accounting period, every taxpayer=s additional tax period
begins on the day that the franchise tax no longer applies to the taxpayer and ends on the day the taxpayer is
no longer subject to the taxing jurisdiction of this state in relation to the tax on net taxable earned surplus.
We also concluded in Beall Brothers that the fact that fiscal year taxpayers may pay more
tax than calendar year taxpayers does not create an equal protection problem. This conclusion was
premised in large measure on the assumption that the taxpayer could voluntarily elect to be a fiscal or
calendar year taxpayer. In Beall Brothers, we relied on a number of cases which hold that a taxpayer who
makes an election relating to accounting practices that affects the corporation=s tax status binds itself to its
prior election for future tax purposes. See General Dynamics Corp. v. Sharp, 919 S.W.2d 861 (Tex.
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App.CAustin 1996, writ denied); Sunoco Terminals, Inc. v. Bullock, 756 S.W.2d 418 (Tex.
App.CAustin 1988, no writ); Southern Clay Prods., Inc. v. Bullock, 753 S.W.2d 781 (Tex.
App.CAustin 1988, no writ). Universal elected to operate on a fiscal year rather than a calendar year for
accounting and tax purposes. Although this election results in a higher burden for additional tax purposes,
Universal=s voluntary election remains binding.
Universal argues that Beall Brothers does not control this case because Universal did not
actually make the election to operate on a fiscal year; rather, Universal=s parent corporation elected to
operate on a fiscal year basis. But because Universal was a wholly owned subsidiary, its parent then
required Universal to adopt the fiscal year election. Thus, Universal contends that its case more closely
resembles Bullock v. Sage Energy Co., 728 S.W.2d 465 (Tex. App.CAustin 1987, writ ref=d n.r.e.). In
Sage Energy, the taxpayer was required to capitalize some of its costs because it was a publicly traded
corporation and subject to Securities and Exchange Commission (ASEC@) regulations. Other privately-held
corporations, which were not subject to SEC regulations, were allowed to report the same costs as
expenses. This reporting difference resulted in unequal franchise tax liability, thereby denying the taxpayer
the right to equal and uniform taxation. Sage Energy differs from Beall Brothers because the taxpayer in
Sage Energy did not elect a reporting method that resulted in a higher tax burden; the reporting method
was required by SEC regulations.
Universal analogizes its situation to that found in Sage Energy. However, Universal=s
argument overlooks the fact that Universal=s parent has voluntarily made an election and that election was
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not the result of any action by the Comptroller or any other governmental authority. Therefore, we conclude
that Beall Brothers, not Sage Energy, controls this case, and we overrule Universal=s first issue.
Having overruled Universal=s challenge to the validity of the additional tax, we now turn to
its second issue. Universal contends that the Comptroller improperly calculated Universal=s tax liability using
an earned surplus that was reported by its parent corporation. Federal law permits parent and subsidiary
corporations to file consolidated tax returns for income tax purposes. I.R.C. ' 1502. Throughout
Universal=s existence, it joined in a consolidated tax return filed by its parent. In 1994, all of Universal=s
stock was sold, resulting in an earned surplus for Universal in excess of $83 million. Universal and its parent
corporation treated that sale as an asset sale, pursuant to section 338 of the internal revenue code. See
I.R.C. ' 338. Section 338 permits a selling corporation that is a member of a consolidated group to sell all
of its stock and treat the transaction as a sale of assets that are owned by and attributable to the parent
corporation. Id. By making the election for a deemed asset sale, the selling subsidiary corporation can
receive favorable income tax treatment. Therefore, as a result of the section 338 election, Universal
contends that any income generated by the sale of the assets did not result in any net taxable income to
Universal, but only to its parent corporation.
Universal=s basis for this argument lies in the fact that Universal belongs to a consolidated
income tax return group. The group files a consolidated income tax return in which the parent and its wholly
owned subsidiaries may combine earnings and losses for the group to determine the group=s income tax
assessment. Ultimately, however, the parent owns all of the subsidiaries= assets and, thus, reports the final
tax assessment for the group. Accordingly, Universal argues that any sale of those assets becomes taxable
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income only to the parent. We reject this argument because it contravenes specific Comptroller rules
dealing with franchise tax treatment of subsidiary corporations that are part of consolidated income tax
groups.
The Comptroller=s rules require that Universal, in computing its earned surplus, use the same
methods used in filing its federal income tax return as a separate corporation. 34 Tex. Admin. Code ''
3.555(c), (e) (2001). Universal chose to report its sale as a deemed asset sale and make a section 338
filing. Section 338=s filing rules identify Universal as the target corporation for purposes of a deemed asset
sale. I.R.C. ' 338(d)(2). At trial, Universal admitted that under section 338(h)(10) the target corporation
recognizes a gain or loss after a sale. Accordingly, the $83 million gain from Universal=s sale was properly
attributed to Universal in computing its earned surplus. See id. ' 338(h)(10); 34 Tex. Admin. Code '
3.555(c).
Universal maintains that although it did recognize a gain from the sale, the gain was ultimately
reported by its parent because of the consolidated tax return. This argument, however, contradicts the plain
meaning of the tax code and the Comptroller=s rule 3.555(e). See Tex. Tax Code Ann. ' 171.110(h); 34
Tex. Admin. Code ' 3.555(e). The tax code requires that a corporation=s net taxable earned surplus be
calculated solely on that corporation=s own financial condition; consolidated reporting is prohibited. Tex.
Tax Code Ann. ' 171.110(h). The Comptroller=s rule provides the following instruction for calculating a
corporation=s earned surplus filed pursuant to a consolidated return:
(e) Consolidated income tax returns. For the purposes of this section, if a corporation
joins in filing a consolidated federal income tax return, the corporation must compute
its earned surplus as though no consolidated federal income tax return were filed.
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Therefore, taxable income, compensation, and other items must be computed as
though a separate federal income tax return had been filed by the corporation.
34 Tex. Admin. Code ' 3.555(e). Further emphasizing this point is the Comptroller=s rule which explains
the apportionment of a corporation=s earned surplus. Rule 3.557 requires a corporation to Areport gross
receipts based solely on its own earned surplus because consolidated reporting of related corporations is
prohibited.@ 34 Tex. Admin. Code ' 3.557(d)(3) (2001). The tax code and the Comptroller=s rules make
it clear that filing a consolidated income tax return does not alter Universal=s additional tax liability because
Universal must calculate its net taxable earned surplus as if Universal were not part of a consolidated income
tax return group. Accordingly, the Comptroller=s rules require that we look past the fiction that Universal=s
deemed asset sale does not constitute income attributable to Universal, but only to its parent.
The record reflects that Universal conceded that each member of the consolidated federal
income tax return group had separate taxable income. Universal further conceded that each member of the
group prepared a pro forma income tax calculation based solely on its own financial condition. That
calculation was later combined with the pro forma calculations from the other members of the consolidated
group and adjusted for Universal=s parent=s final income tax report. However, because the Comptroller=s
rules clearly do not allow consolidated filing, Universal=s additional tax assessment must be derived solely
from its own pro forma calculation. That pro forma calculation shows Universal as having recognized the
gain from the deemed asset sale in question. Applying the Comptroller=s rules, we conclude that Universal
may not shift its earned surplus to its parent by filing a consolidated income tax return. Accordingly, the
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Comptroller=s assessment of Universal=s additional tax liability was proper. We overrule Universal=s second
issue.
CONCLUSION
Beall Brothers controls Universal=s first issue challenging the validity of the additional tax.
The disparate impact of the additional tax on fiscal year taxpayers results from a voluntary election made by
the taxpayer. Therefore, the additional tax complies with the principles of equal protection and equal and
uniform taxation. Alternatively, Universal may not rely on its status as a member of a consolidated income
tax reporting group to alter its additional tax assessment. The tax code and the Comptroller=s rules do not
allow such reliance. Accordingly, the trial court properly denied Universal=s motion for summary judgment
and properly granted the Comptroller=s motion. We overrule Universal=s points of error and affirm the
judgment of the trial court.
Mack Kidd, Justice
Before Justices Kidd, Yeakel and Patterson
Affirmed
Filed: May 16, 2002
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