136
/.
0wlcE OF THE ATTORNEY GENERAL 0F TEXAS
. .,
;. _~ AUSTIN , u
‘I
: Hr. c. J. iYllde
Couuty Auditor
Corpus Christi, TeAa&
~‘ ..
Dear Mr. Kilde:
;
$ ./‘,.
..~ . You requeet’ the 0
$: .letter of .September 22, 194
:_~ quote your letter as follow
ou ~advise us a8
to the status taxes for truck-
ing companlee operating in
Nueaeea Couqt uation wherein. .’
ny; which is
d Company, op-
-Nueces County exoluslvely,
ed .by the railroad com-
lso pioking up deliveries
nea of %Nueces County.
red .for personal proper-ty ‘.
alorem tax in Nueaes
tuation is the. various automobilas
beings operated by the Central Power
. ,’In thie case, there are a number
or vehicles’ throughout ‘several COWL-
Are.we to coneider only the
ng in Nueoes County,,or, shall we
consider all vehicles as being. aseeasab&e in Nueoee
Comty? Another iriatanoe, ia the Transport Company
of Texa8 whioh owns and operates a number of gasoline
trucks oarryiny, gasoline to ,mny of.the Army and.Navy
Camps throughout the oouhty, said oompauy being do--
mioiled in Hueoes County.~"
.*
: Replying to our request for additional information,
you stated in your letter of October 14, 1943:
. _-.
“Referring to your letter of September 30th,
Re: Opinion Request No. O-5632, please be advised
that the Transport Company of Texas is domioiled in
Muecea Ccuuty; the Southern Pacifio Transport Com-
psuy, X aaaune+,i’a donioiled in Houston as it ia a
subsidiary of the Southern Pacifio Railroad Couhty,~1
~however, thetrucks used by this conoern are houaed
and used entirely, to the beat of ‘my knowledge, in
Nuecea Couuty naking dellverlea of freight shipped
.over the Southern Paoifio Lines. I, also, ,believe
that all thr6e oompeniea are oorporetIona.*
We deem it desirable to treat these:corporatlons
!C:,separately. ?la, therefore, take ‘up the Southeyii Pacific Ttiana-
F<,port Cotipany f irat t
..
SOUT%RNPACIFIC TRAKSPORT
COXPAhY
c$T,n
;;r;:
p: ~.
F#.i ‘. The records in the office of the Secretary of State
${. reveal that the Southern Paolfio Transport Oompahy is a Texas
?p odr ration, donioiled in Harris Couuty, for the purpose stated
%.;.ih r ta: Charter: “to tranaport goods‘ wares and nerohandiae,
5% or any.~vsluable thing.” It is apparent that the Southern Pa-
~‘clfio Transport Compaxiy la riot a railroad conpanyi even though-
$ it my be affiliated with the southern Paoifio Railroad Company,
;;; henoe it la of .no aIdi but would only serve to oonfuae if we,
F.,, ahould att,empt to apply the Conat1tutional and Statutory pro-
&-.viaiona ap lloable to the organization, operation,~ and taxa-
;, tion,of ra Plroad oornpanlea in an itfrortto arrive at a oorreot
:.- answer to your queatiofii We shall revert to this later merely
:t- for the purpose of distinguishing the railroad oases from the
I:::~,
;‘I truok and bus oases,
It is observed that your opinion request aasmos as
a fact, add we must as of neoesalty asauae the aamc state of
Saota that the Southern Paoifio Transport Company *operates
: ~.~a truok or truoka, in Mecca Couuty excluaivele receiving
the material shipped by the railroad company, &king deliveries
and also picking up deliveries for a transfer within the oon-
fines of 14uec;ls County.” This addtted state of fects fixes
,, a business situs as to the truoks inquired obout in Kueoea
. ,
County, as distinguished from the home office or domicile
of the corporation in Harris County.
As an abstract proposition of law, personal
property is taxable at the domicile of the owner, but where
the owner by h,ia own voluntary tact fixes a definite and
permanent aitus of personal property owned by him for
business purposes in another oounty other than his residence
or domicile, and we think that the 3outhern Pacifio Transport
‘Company has done that in this instance, thus aubjeotlng said
trucks to ad valorem taxes by Nueoea County. This rule is
vory well stated in tha case of John Rancook ~~utual Life
Inauranoe Co. v. Davis, (writ? of error denied) 162 S. W. (2d)
433, in the following language:
‘We overrule appellants osaignmenta of error
numbered 1, 8, 30, 31, 32, 37, 38 and 39, bottomed on
the propoa,ition that notes and other personal property
are legally taxable only at the domicile of the owner.
This is a correot statement of an abstract proposition
of law; but we fail to see how the same 1s here involved,
The notes have never been taxed in the State of Texas,
and no attempt is shown to have been made to tax the
3-9 The owner of the notes, at its ontioh oould
establish a situs for taxation of the notes n Waoo.
MoLennen County, in whioh event the makers of the notes,
by reason of the above quoted provisions of said deeds
of trust, would be obligeteU to pay the’taxea assessed
against the same.”
The Constitution of Texas, Article 8, Seotlon 11
provides as follows:
“All property, whether oyned by pereona or oorpora-
tions, shall be assessed for taxation, and the taxes paid
in the oountica where situated. . ,”
.Artiole 7153 of Vernon’s Annotated Civil Statutes
of 1925 provides as follows:
“All property, real and personal, except auoh es
is required to be listed and assessed otherwise, shall
be listed and assessed in the oounty where it is situated;
and all persons1 property, subject to taxation and
temporarily removed from tho State or oounty, shall
be listed and assessed in the oounty of the residenoe
of the owner theroof, or in the county whero the
principal office of suoh owner is <uated.”
The truoks referred to in your letter are obviously
tangible personal property.
We think the rule has been well settled in this
State ns to the oounty In which tangible personal propertjr
is subject to tsxntion. It is stated as olearly in our
opinion No. G-3702, from whfoh we quotd,as follows, as we
shall be able to restate it:
“The rule or law appllaable in Texas is, therefore,
thab tangible personal property is taxable in the oounty
of Bhe domialle of the owder Unless the property has
acquired a permanent fixed situs of Its own separate
and apart from that of the,aounty of the owner’s domi-
alle. Mere temporary absenoe from the aounty of the
owner’s aomlolle does not give tangible personal property
a taxable situs In another oounty end remove it from
taxation in suah county of the owner’p domicile. : . .
*However, in e aase where taxglble personal property
does aoquire a permanent sltus in a aountg other than
the oounty of the owner’s dcimloile in relation to the
tar year in question such property ‘is taxable la the
oounty where %he sane is actually looated. . . .”
The dlatino.tlon we have made is reoognlzed in the
6aae of Great Southern Life Insuranoe Co. v. City of Austin,
43 S. W. 778, (Supreme Court of Texa6, opinion by Chleif
ustloe Cureton) from which we quote as followsr
“It Is true that the aotual situs of oertaln classes
of visible and twible personal property, as well as
intangible property having similar oharacteristlas, as,
for example, money, State aa mun~oip+ bonds, airaulating
bank notes, and shares of stock in private corporations,
may have a situs for taxation where they are permanently
. m separate and apart from the domloile of the owner. *
’ .
.&ir. C. J. I'Xlae, page 5
Vie do not deeri it neaessary to lengthen thla
opinion by tho citation of auuulatlve authorities, and we
may well let It rest upon the ease of Great Southern Ll.fe
Insurance Company v. City of Austin, supra, by that enlnent
jurist, the late Chief Juatlae Cureton, but we note briefly
~a few other deoisions. In the case of City of Galveston
v. J. hi. Guffey Petroleum Company, (writ of errors refused)
113 8. W. 585, from whioh we quote as follows:
"The Legislature may, in oertaln lnstanoes, give
to property an artlflolal situs for the purposes of
taxation; but when the property is physloal in oharaater,
or of a nature that oan aaqulre an aotual situs, it must
under hour Constitution be taxed in the oounty where,
aotually situated or located. The finding of the court
Is to the effect that these vessels so taxed have an
actual sltus at Port Arthur, in the oounty ofmson,
and nre not and have never been wlth.ln waters looated
wlthlu the territorial jurlsdlation of the oity,of
Galveston.
."That vessels may aoqulre an aotual sltus is a
proposition too well settled to be questioned, .and
that the place of enrollment and registration Is not
oontrolllng, if the aotual situs 1s elsewhere. . . ~.W
(3mphasl.s added)
Uooley on Taxation, Vol. ~2, 4th edition, page 975,
Fli'~~..
; appears the following:
"The situa of tangfble personal&W perty, for
purposes of taxation may be where the oi ner is Uomlolled
but is not neoessarily a. Unlike IntangIble personal
property, it may aoqulra:a taxablesltua In the state
other than the one where the owner is &omIailed, merely
beoause It Is located there. Its taxable lsitus is
where It Is more or less permanently looated. regamess
of the domiolle of the owner.? (Emphasis added-
-
!7e must not be misled by the aonfusloqwhloh may
arise by the loose language used in some of the dealsions
with respect to the rule that prevails as to the taxation of
rolling stook of railroads in an effort to apply an analogy
in aonslderlng the taxability of truoks and buses ovned and
Mr. C. J. zilae, page 6
operated by corporations or individuals, This distinction
is apparent, and made so by Judge Leddy in the oase of Gulf’
c0+aa0 k s, F. RY. CO; v! Clty~ of Dallas, 3.6 s.‘;!. (al)
292, (Coraalsslonof. Appeals 1 in the following language, from
which we quote:
“The Legislature or1 inally (Aot Aug. 21 1876
(Laws 1879, o. 157,, 0 l.9)? subjected rolling &oak of
railway aompanias to taxation by aities and towns by
the apportionment method, and subsequently repealed
the same in the adoption of the Revised Statutes of
1879, and later, by the passage of the Aot of Alaroh 28,
1885 (Laws 1885, a. 631, expressly exempted railway
companies from the necessity of making rendition of its
rolling stock to Incorporated oitles and towns, We
think suah aatlon negatives the grant of authority to
the alty. of Dallas whloh is alaimed to exist In this
case to tax the rolling stock of a.rallway aompanp,
even thou& the same was situatad within the aity on
Sanuary 1st. and so remained for a definite tine.
“The Legislature no doubt concluded that it would
not be tho exercise of a sound poliay to subjeat rolling
stook of a railway company to taxation by oltles and,
towns. along their lines because of the oonfusion whioh
would result from efforts of different mun1alpalltles
to determine the sibus ,of suoh property due to its
transitory nature. While switch engines may have more
permanenoy in thelr~ looatlon than other rolling stock,
yet all locomotives belonging to a railway aompany
are of neoessitg a part of its rolling stook, the
looation of whloh Is subjeot to ,be changed from time
to time. The aitus of so muak of rolling aboak belonging
to railway companies was lndefl~nlte ,and unoertain that
the Legislaturewas justified in olaselng It all as a
unit for purposes of taxation, It unquestionably had
the authority to determine the situ5 of rolling stook
for purposes of municipal taxation. The faot that
isolated rolling stook might in some instonoee appear
to have a fixed location Is not sufflalent to Invalidate
the alasslfioatlon thus made.
*In the absenoe of .a statute defining the taxable
situs of this property otherwisegY it was only taxable
at the domlolle of the railway oompahy.” (Emphasis added)
.%, : Mr. C. J. Wilde, page 7
.
_i
ii
!.:$T,’ Briefly, Judge Leddy haa said:
1;::
,:
2~ ~. “The Legislature unqueetionably had the authority
\.~.
Ltr to determine the altus of rolling atook Por purposes
‘1, of muniolpal taxation, but having by legislative aotion
L!. exoepted railroad oompaniee frcm rendering any part of
i:*:I” their rolling atook to lnoorporated cities or towns
&-
.through whloh their lines may extend, thus preoludlng
;&c the olty of Dallas or any other munioipallty from taxing
>Y,,’ the rolling stook of railroads. This acxoeptlon is
L,~‘),.~_
;
I::
-.-,,. manliest by Artlole 7168, Revised Civil Statutes, whloh
provides:
::.-
‘I
z.7
i:‘+:
~7 WIAIL personal property of whatsoover kind or
.I:‘& oharaotsr, exoept the rollinS atook belonging to the
$,., company or in their possession in eaoh respaotlve oounty,
&i;~ listing and desorlblng the said personal property in the
same manner as is no# required of oltlzens of this State.‘*
‘g&:,
@ Aocordingly, we hold under the Taots submitted by
?.~~
J*,~ you that the truoks of the Southern Paolflo Transport Company
have aoqulrad a business situe in Nueoes County, thus subjeot-
ing them to ad viLl.orem taxes by said oounty.
Transport Company of Texas
According to the reoords of the Railroad Commission,
the above named oompany 1s lndlvldually owned and 1s domlolled
in Nueoes County. The general oommon law rulsethat the sltus
for taxation of personal property Is the domiolle or the owner
,‘:... ,applles to individuals as well as oorporatlons, unless a busl-
ness ,situs has been aoqulred elsewhere, and slnoe under the
facts submitted the truoks of the Transport Company of’ Texas
have not aoqulred a business situs outside of Nueoes County,
the domiolle of the owner we aooordingly hold that, iis::totthe
truoks of the Transport C&npany ot Texas, they are taxable in
Nueoes County,
,&’
y@; ,yT
Mr. C. J. Wilde, page 8
Central Power and Llp,ht Conpane
Records of the Secretary of State reveal that the
above named ooapany is a Massaohusetts oorporation, with its
prlnolpal office in Boston, Masaaohusetts, operntlng in
Texas under a permit. Its applloatlon Sor permission to
do business in this State, filed in 1936, states: “Buslne ss
~ln the State of Texas is to be transacted at Corpus Christi,,
Nueoes County, Texas, and all other oountlea in Texas. The
name of the manager or person in oharge of said Texas business
or agenoy will be %r. James 0. Kennedy, Corpus Christl, Texas,
714 Nixon Building. 1V
Article 8, Seotlon 11 of the Texas Constitution
provides as quoted above. Artiole 7153,, R. C. S. prbvldes:
“All proporty; real and personal, exoept suoh as is
required to b.e listed and assessed otherwise, shell be
listed and assessed in the oounty where it la situated;
and all personal propeirty, subjeot to taxation end ten-
.’ porarlly removed rrom the State or oounty, ehall be
listed and assessed in the county of the residence of
the owner thereof, or in the oounty where the prinoipal
offloe of such owner is e&tuated.*
In Guaranty Life Insuranoe Company v. City of Austin,
190 S. w. 189,Chlef Justloe Phillips; speaking for the Supreme
Court, said:
“This artiole olearly oontemplates that any property
classified as personal property by artlole 7505,and having
a oonorete form may aoquire a sltus distinct from the
plaoe of the owner’s residenoen provides that personal
property *temporarily removed from the state or oounty’
shall be taxed in the oounty of the owner’s residenoe.
This is a provision with reapeot only to personalI{r;c+rty
Ftemporarily removed from the county or state.’
no applleation to personal property whose removal is not
temporary, but whioh has aoquired a sltus in a different
oounty. If the removal from the oom-f the owner*s
reaidenoe be only temporary, it could not under the artlole
acquire a situs elsewhere; it Is to be regarded as still
*situatedV-%i?&e county of the owner’s residenoe and is
therefore taxable there. The artiole makes it plain,
a-* c. IT. ‘Zilde, page 9
’ havcve,r, that if the removal be not of a temporary
oharacter snd the property has aoqulred a situs in
a different county, it is taxable in suoh ay,
unless within the exoeption of the article and
therefore expressly made taxable elsewhere.”
The faot that person~al property of a foreign
corporotlon physicaLly located in this State is aubjeot
to taxation in this State appears to be well settled.
Texas Land and Cattle Co. v. City of Fort-Worth, 73 5. Yi.
(Zd) 860, error refused; Jesse French Piano and Organ Co.
~‘v.~Ci;; or Dallas, 61 S. ‘f!. 942, error refused; 40 Tex.
. .
From the foregoing it is apparent that under the
weight of authority, personal tangible property of a foreign
oorporaflon doing business in this State Is taxable’where
the property is aotually physically looated ~a& used in- the
business of the oor$osation, and where it has ItsTexas
olfloe and plaoe of business if its removal therefrombe
only of a temporary nature. Therefore, if the trucks of
the Central Power and Light Company operate from the garage
or storage base in aorpus Chrlsti, Nueoes County, Texas,
. upon a temporary basis, fromwhloh the operations initiate
and to whioh they return, in suoh way as not to acquire a
business situs elsewhere, said trucks are. aooordlngly taxable
in,~ Nueoes County. However, if any of the’ truoka and automo-
bilea of this oonoern are kept outside of Nueoes County upon
a permanent basis, as distinguished from a temporary,basls,
they would not be taxable in NueCes Cotity.
Yours very truly