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June 10, 1955
Hon. A. M. Muldrow Opinion No. S-15.9
Secretary of State
Capitol station Re: Deadline for payment of.
Austin. Texas franchise taxes when May
1st falls on Sunday.
Dear Mr. Muldrow:
YOU submit for the opinion of thts office two questions based
upon the facts disclosed by your letter’ which is, in part, as follows:
*Article 7084. V.C.S. of Texas, provides, in part,
as follows:
‘Except as herein provided, every domestic and
foreign corporathin heretofore or hereafter
chartered or authorized to do,business in Texas,
or doing business in Texas,~ shall, on or before
May first of each year, pay in advance. to the
Secretary of State a franchise tax for the year
following, . . *’
UArt$cle 709 1.~V.C.S. of Texas, provides, in part!
as follows:
‘Any corporation, either domestic or foreign
which shall fail to pay any franchise tax pro-
vided for in this Chapter when the same shall
become due and payable under the provl.sions
of this Chapter, shall thereup6n become liable
to a penalty of twenty-five per cent (25%) of tb.e
amount of such franchise tax due by such tory
poration. . . .*
“May 1, 1955 fell on Sunday. . . . In all cases,
we have assessed the’25% penalty where the envelope
in which remittances were received bore a postmark
afterMay l... . .
*Since money is involved, and in some cases a
considerable amount, we are asking for an official
ruling on the following questions:
- .
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Hon. A. M; Muldrow, Page 2 (Opinion NO. S-159)
“1. In a year when May 1 falls on Sunday, can the
Secretary af Statesaccept payment without penalty kl
those cases where the envelope in which remittances
are mailed bear a postmark of May 21
‘2. If a taxpayer brings his payment to the office
on,Monday, May 2;can the Secretary of State accept
.+he payment without penalty upon the theory @at the
offi& was closed on Sunday? *
Our answer to both your questions is In the negative.
In the absence of some exception to the general language of
Article 7084, Vernon’s Civil Statutes, - and there is none - a franchise
~.’
tax pay&nt’.made on Monday, May Znd, foliov.+lng a Sunday,w&lch is
May. 1st -1s not timely paid ~0 as to relieve .the taxpayer of the penalty
imposed for a delinquent payment. The statute provides’ that the ‘pay-
ment is t0 be .made “on or before May 1st of each year*, and a payment
tiade on May 2nd. regardless of the fact that May Itit was a S~unday,~
would be a. delinquent payment and subject to the penalties, imposed .by,
tba statute as lt~would not be on.01 before .&lay 1st. A paymeqt ma+ ko.
the Secretary of State on May 1st: even t&btigh it be Sunday, wo+ be..+
.~.timely payment.
.~
The case of Nunji et al’v. New,et al, 148 Tex;44,3, & S.W.
.~Zd 116 (i950), is inspoint. The Supreme Court in,thls case St&es the
.law’as follows:
~’*The r&e hai long been firmly established :g &is:
State that where a statute requires that an a& ‘be. d&e.
wi&in.a specified. time, such as that speeifled~ here, &,e
last ‘day will not be ex‘cluded and the lea&h ofUime there-.
by extended when tbat~day falls .on ti legal holiday or
G&d&y., unless the statute so provides. Burr v. Lewis,
6 Tex. 76~ Hanover afire Insurance’ Co:v. Shrader and
.Rogers, 89 Tex. 35.~33 S., W. 112. 32 S. W. 872, ,30 L.R.A.
49~8,59.Am. St; Rep. 25~ ,Fldellty & CaS<y Co. ~ofNew
.York:$ Mlllican, Tex. Clv. App., 11.5 S.W. Zd 464, kiror
refusedi . . .”
ArtlcIe .7084 contains no provision~for extend&g the ‘&l&e for
.~,thepayment of franchise taxes when @e l+st day for such paym&nt.,is a
.~:~&gal hollday~ or Sunday.
The p&&y prtilslons of the franchise tax statute appear to
be rather +rsh,: however the matter has’been’ called, to the .a@+ion of
,+.helegislature by s&&al secretaries of s&te..and the $gtiJatMe has
not seen fit to’cbange these requirements.
-.
Hon. A. M. Muldrow. Page ,3 (Opinion No. S-159)
SUMMARY
In cases where May 1st falls on Sunday and the envelope in
which remittances are mailed to, the Secretary of State bears a post-
mark of May 2nd or in cases where the taxpayer bringe.his papment to
the office of’the Secretary of State on Monday, May Znd, following Sun-
day, May let, the penalty for delinquent payments as provided in
Article ~7084,. V; C, S., would apply.
Yours very truly,
APPROVED: JOHN BEN SHEPPERD
Attorney General
John Atchison
Reviewer
J..A. Amis,‘Jr.
Reviewer
Assistant
Robert S. Trotti
First Assistant
John Ben Sbepperd
Attorney General
LPL:rn