_.~ .
SeCr8tam Of Stat8
Capitol Station Re: The inclusion of unkeal-
Austin,~ Texas '. ized prdf'it from'lnstall-
ment sales as sur@lus for
franchise tax purposes.
Dear Slr:~
,Your request .for reconslderation.of Opinl6n
RO. 0-5680 addressed to Ron:Sldney Latham, Secretary
of State, approved January 8,. 1944, by Hon. Grover
Sellers as Attorneg General is.as follows:.
"During recbnt months the St&Audi-
tor has been engeged in’ exsmlnlag’ cotipora-
tions' books to determine if th6 ptiop@r "
amount of~~taxable capital for franchise' ).
tax purposes .has been reported in th8 si+'
nuai reports:filed in fihis ofriC8. In not
a few oases he has r8conDWnd8d assessment
of franchise tsx upon unrealized gross
profi-t from installment sales of merahan-~
dlse. Several such cases Involve corpora-
tions dealing in real estate, selling also
on the Installment basis. The accounts and
notes XWc8iVabl8 are spread over. a period
Of S8V8rd mOnthS.and 8V8tl 88V8Fd y8aZ’S.
As collections sxe made the net profit is
transf8Pr8d surplus and'uadlvided profits.
Taking intb earning6 the net profit only
as, If and when accounts and notes:are col-
lected results in inaome tax liability on
only the net gross income involved in any
one ye* and not upon the gross smount'at
date-of the contract..sale'.~.Tbls has long
been reconnleed bs th~mmlssioner'6f In-
ternal Re~ehue. -
"Your attention iS directed to Attor-
ney G8n8ral'S opinion dated April 30, 1934.
For the sake of brevity we shall not qUOt8
from the opinion, but it Is noted that a
sound and reasonable construction of the
meaning of 'surplus aed undivided profits'
la presented, both from the standpoint of
78
HOtI. Ben Ramsey - PSg8 2 (v-774)
accounting terminology and the recognition
under th8 F8d8rti Income Tax Law Of the
equity of th8 treatment of Unr8aliZ8d prof-
its. It being held in the opinion that such
profits should not be Included as tSxabl8
capital for franchise tax purposes, this
Office has cOnSiSt8ntlg fOllOW8d the rUlirg
and D8V8F attempted t0 .5tdj,UASt the P8pOl’tS SO
as to include unrealized profits from install-
ment sales as surplus for franchise tax pur-
pOS8S.
"DUXlrilIg
1943, hOWeVer, the question Was
again raised and in opinion No. 0-5680, dated
January 8, 1944, it was held'that unrealized
profits should b8 taxed but only to the ex-
tent Of the cash ValU8 of the &count. A
Settlement WaS &88d UpOn in the CaS8 in-
volved which prompted the request for the
OpiniOn, but upon th8 basis of th8 corpora-
tion's appraisal: You can readily 888 that
an attempt to plsc.8 a cash value upon an ac-
count of this nature would Involve expensive
InvestIgatIona which would be time-aodsuming.
Indeed, such a prOCedUr8 would b fraught with
many UlIknOWn and UnfOr8S88lI faCtOr's. .Them
would be COlleCtiOn expenses, estimated in-'
come tax -tO be paid Upon net future CO118C-
tionS and fOr8clos~8s~ :
"IIIalillOSteVel’7 CaS8 without 8XC8ptiOn
th8 taxpayer ha?sVvigOrOualy protested th8
proposed additional aSS8SSm8nts as r8cOID8nd-
8d by the State Auditor-and in two or three
instances the SCCOUntS were referred back ,to
th8 Auditor. These W8r8 finally adjusted On
a basis of abou$ 25% or 30# of the gross
amount in the unrealized profit account.
Even this inVOlv8d the expense of re-examina-
tlon and re-investlg@ion. To say the least,
the recommendations for additional assessments
based on lOO$ of the &~count Is CSUSiUg UO
little confusion in this office In attempting
to arrive at some equitable basis of aSS8SSing
additional tax, if any Is actually dU8-
Hon. Ben Ramsey - P-8 3 (v-774)
"Since the Issuance of opinion No. 0-5680
th8 SUpr8IIE COUrt Of the United States; in
South T8XaS Lumber Company vs. Commissioner
of Internal Revenue, 333 cr. s. 496, 68 s. ct.
695, 92 I,.Ed. 631, held that Unr8aliZed ln-
come attributable to the unpaid Installment
obligations could not be considered a part
Of invested Capital. Rmphasls was placed upon
'the difficult and time-consuming effort of
appraising the uncertain market value of In-
stallment obllgatlons' which 'may never be paid
or may be paid only in pa&.'
nIn the light of th8 d8clSion of the Su-
preme COUrt in the.abOV8 mentioned baS8 and
the Conflicting OpiniOnS, alSO referred to,
W8 r8SpWtfUlly l’8qU8St that YOU r8Vi8W the
qU8StiOn before US and inform thiS Offi&
whether or not we should COnSid8r Unti8SliZ8d
profit from Installment sales as surplus for
franchise tsx purposes."
Article 7084, R8ViS8d Civil Statutes, as anend-
$d, prOVid8S .for the payment of corporate franchise taxes
. . . based upon that proportion of the outstanding cap-
ital stock, surnlus and undivided profits. . .* (Emphasis
added)
An opinion dated April 30, 1934, b$ the
Ron. James V. Allred, Attorney General, &dr&ssed to
Ron. W. X. Heath, Secretary of State, In answer to the
question as to Whether or~not~~unr8aliz8d profits from
inStallm%nt .Sal8S should be cOnSid8r8d either as sur-
plus or undivided profits for the purpose of computing
franchise taX88, held that such items "cannot b8 proper‘1Y
Carried as 8ith8r~ th8 'SurpluS' or 'undividGd"prOfit'
account and should not, th8P8fOr6, .be oOnSid8r8d in
measuring the tex due by a corporatiop."
..The reasoning of this Well-CbnSid8r8d Opinion
was based upon cited authoritiesi and particular refer-
ence was mad8 t0 s8ctiOn 44 Of the R8v8nU8 Act Of 1932,
the Federal Income Tax Law.
On January 8, 1944, in opinion No. 0-5680 by
HOD. Grover s8118rS addressed t0 Ron. Sidney Latham,
Secretary of State,:ln answer to the question as to
Whether or not items of "Un~'tiis8d profits" on install-
ment sales were tEUabl8 Under Article 8074, R. C. S.,as
80 HOII. ml3 RSlJlS8y - &3#38 4 (v-774)
amended, at-th6iti face value a& Shown on the fPanchiS8
tsXreports, it was held that such'ltems were taxable
&s part'of the "surpluS"' and the tSX based~ upon the
actual Vdt.18 OS the UDr8aliZ8d profits rather than th8
faC8 VtiU8 thereof. No r8f8ti8DC8 WaS mad8'tO th8
Opinion of Hon. Jsmes V. filr8d above referred to.
The Supreme Court of the United Stat&S in
the recent case of South T8XaS Lumber Compa
cOUlJSiSSiOD8l'OfIlltW?tl& RBVenU8,$33 u. S.
L. Ed. 631;68 S. ct. 695, reasoned that:
"The installment basis of reporting
was enacted, as shown by Its history, to
r8li8V8 tSXpay8rS who adopted it from hav-
ing to pay an income tax in the year of
sale based on the full amount of antici-
pated profits when in fact they had re-
C8iV8d in cash Only a Small portion of
the S&80 pl’iC8. Another reason was th8
difficult and time-consuming effort of
appraising the uncertain market value of
installment obligations. . . .
)I. . . SeCtiOn 4.4 provides for th8
return as Income 'ifiany taXable year
that proportion of the lnstallmant pay-
ments actually received in that year
which the gross profit realized or to be
realized when payment Is Completed, bears
to the total contract price.' . . . 844
does not recognize as subject to income
taX liability th8 'market ValU8' Of de-
ferred Installment obligations. They may
never be r8.cOgDiZ8d by a tSXpay8r on the
installment basis for tax purposes under
844 or any other section, for they may
never be paid, or may b8 paid only in part.
added)
The COUrt then held Under the facts of that C&S8
and the Fed8r& statute inVOlV8d that unrealized
.proSlts SromPnstallment sales could not be con-
sidered as a part Of invested capita.
81
Hon. Ben Ramsey - Page 5 (V-774)
After a careful reconsidetiation of each
of the fOr8gOing OplnlOnS Of the former Attorneys
General, in the light of the opinion of the Supreme
Court of the United Stat80 cited, it lS the OplnioD
of this office that the ruling Contained in the
opinion by Hon. James V. Allred, approved April 30,
1934, which held that unrealized profits from ln-
StS.llm8nt sties do not constitute either surplus or
undivided prOfit for i&8 purpose Of COmpUtiDg fran-
chiS8 tsxes under the provisions of Article 7084,
R. C. S., as smended, Is correct, and this opinion
Is therefore r84fflrm8d. Opinion No. O-5680 dated
January 8, 1944, Is expr8881y OV8rrU18d Insofar as
it COnfliCtS herewith.
SUMMARY
Items of unrealized profit from in
Stdhtl8nt Sd8S do Dot COIlStitUt8 8ith8l’
"surplus" or "UnX'8tiiZ8d pPOfitSn for the
purpose Of computing cOrpOrat8 fPaDchlS8
taxes under the provisions of Article’708&,
R. C. S., as amended. South T8XaS Lumber
Company v. Commlssloner of Internal Revenue,
333 0. S. 496, 92 L. Ed. 631, 68 S. Ct. 695;
Opinion Hon. James V. Allred, Attorney G8n-
eral, dated April 30, 1934, approved in part.
Opinion No. 0-5680 dated January 8, 1944, by
Ron. Grover S8118r8, Attorney General, over-
ruled in part.
Yours very truly
ATTORNEY GRNERAL OF TEXAS
BY
C. K. Richards
_Asalstant
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