AerSTlN 11. Tl!txTAS
PRICE DANIEL
ATTORNEY GENERA,.
November 81 1951
Hon. John Ben Shepperd Opinion No. V-1339
secretary of state
Austin, Texas Re: Liability of a dissolved for-
eign corporation which applied
for surrender of its Texas
permit after the effective date
of H.B. 285, Acts 52nd Leg.,
195 1, for additional franchise
taxes levied under this bill,
Dear Mr. Shepperd: and related question.
Your letter requesting our opinion relative to the above
captioned matter reads as follows:
“Article 7084, V.C.S. of Texas, provides that
“every corporation heretofore or hereafter chartered
or authorized to do business in Texas D * 9 shall, on br
before May first of each year, pay in advance to the
Secretary of State a franchise tax for the year follow-
ing, ~ ~ ~ ’
“‘We have a foreign corporation that paid the
franchise tax fm? the period beginning May 1, 1951, at
the rate then in effect. The Fifty-second Legislature
amended Article 7084 by increasing the normal rate
from $1.00 to $1.25 per $1,000 of taxable capital,
which became effective September 1, 1951. Your of-
fice has heretofore ruled in opinion no. V-1264 that
allcorporations wouId be required to pay additional
tax at the rate of 25 cents for the period September 1,
1951 to April 30, 1952, both dates inclusive. The for-
eign corporation submitted an application to surrender
its permit a few days after September 1 whereupon this
office made demand for the additional franchise tax
computed in accordance with the formula outlined in
Opinion V-1264. The application for surrender is be-
ing held in suspense pending settlement. In this con-
nection Article 7093, amended Acts 1949, 51st Legis-
lature, p0 975, ch. 536, 89, provides that a foreign cor-
poration may surrender its permit “provided, however,
that prior to the surrender of such permit such corpo-
rations shall have paid in full all franchise taxes and
penalties owedby suchcorporation to the State of Texas.’
Hon. John Ben Shepperd, Page 2 (V-1339)
“The corporation is disclaiming additional tax
liability by reason of having legally dissolved in the
State of domicile on August 24, 1951, which is prior
to the effective date of H. B. 285, 52nd Legislature.
It is cited there was no corporate entity on Septem-
ber 1, 1951 against which franchise tax could accrue.
A photostatic copy of the purported Certificate of Dis-
solution issued by the secretary of state of the State
of De1awar.e has been submitted to us as evidence. The
same question is involved where a foreign corporation
dissolves in its home state prior to May 1 of any year
and submits an application to surrender its permit to
do business in Texas after May 1.
“In the first situation, would the corporation owe
additional franchise tax accruing under H. B. 285?
“In the second situation, would any franchise tax
accrue against the dissolved foreign corporation on
May 1, if such corporation’s. application for a surren-
der of its permit was received after May l?”
Subdivision (1) of Article 7084, V.C.S., before its a-
mendment by House Bill 285, Acts 52nd Leg., R.S. 1951, ch. 402,
p. 695, read as follows:
“(1) Except as herein provided, every domestic
and foreign corporation heretofore or hereafter char-
tered 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, based upon that
proportion of the outstanding capital stock, surplus
and undivided profits, plus the amount of outstanding
bonds, notes and debentures (outstanding bonds, notes
and debentures shall include all written evidences of
indebtedness which bear a maturity date of one (1)
year or more from date of issue, and all such instru-
ments which bear a maturity date of less than one (1)
year from date of issue which represent indebtedness
which has remained continuously outstanding for a
period of one (1) year or more from date of inception
whether or not said indebtedness has been renewed or
extended by the issuance of other evidences of the
same indebtedness to the same or other parties, and
it is further provided that this term shall not include
instruments which have been previously classified as
surplus), as the gross receipts from its business done
in Texas bears to the total gross receipts of the cor-
Han; John Ben Shepperd, Page 3 (V-1339)
poration from its entire business, which tax shall be
computed on the basis of One Dollar ($1) per One
Thousand Dollars ($1,000) or fractional part thereof,
provided, that such tax shall not be less than Twenty
Dollars ($20) in the case of any corporation, includ-
ing those without capital stock, and provided further
that the tax shall in no case be computed on a sum
less than the assessed value, for State ad valorem
tax purposes, of the property owned by the corpora-
tion in this State. Capital stock as applied to corpo-
rations without capital stock shall mean the net as-
sets.”
The above section as amended by House Bill 285 reads
exactly as it did before the amendment, with the exception that the
$1 .OO rate was raised to $1.25 and the minimum tax was raised
from $20 to $25.
House Bill 285 expressly provides that it shall take
effect and be in force from and after the first day of September,
A.D. 1951, It is settled law in this State that a legislative enact-
ment speaks from the date that it becomes effective. You will
note that Article 7084, V.C.S., purports to levy a franchise tax on-
ly against corporations, both domestic and foreign. As the corpo-
ration in question was dissolved in the state of its domicile on Au-
gust 24, 1951, it follows that it was not a corporation, either do-
mestic or foreign, on September 1, 1951, the effective date of the
act. You are therefore advised that the dissolved cof poration in
question does not owe any additional franchise tax levied under
House Bill 285.
For the same reason you are advised that if a foreign
corporation is dissolved in the state of its domicile prior to May 1,
such corporation would not owe a franchise tax in Texas for the
following year beginning on May 1, even though the corporation’s
application for a surrender of its permit was received in the Sec-
retary of State’s office after May 1.
SUMMARY
If a foreign corporatio,n was dissolved in the
state of its domicile prior to September 1, 195 1, such
corporation does not, owe any additional franchise tax
levied under House Bill 285, Acts 52nd L,eg,, R.S. 1951,
ch. 402, p, 695, even though its application for surren-
der of permit is received in the Secretary of State’s
office after September 1, 1951 If a foreign corpora-
tion is dissolved in the state of its domicile prior to
Hon. John Ben Shepperd, Page 4 (V-1339)
May 1, such corporation will not owe a franchise tax
in Texas for the following year beginning May 1, even
though its application for surrender of permit is re-
ceived in the Secretary of State’s office after May 1.
Yours very truly,
PRICE DANIEL
Attorney General
APPROVED:
W. V. Geppert
Everett Hutchinson Assistant
Executive Assistant
Charles D. Mathews
First Assistant
WVG/mwb