dissenting.
I respectfully dissent.
T.C.A. §§ 67-2702 and 67-2902 as they exist now and as they existed during the tax years in question impose corporate excise and franchise taxes upon, “all corporations, . .. organized for profit under the laws of this state or any other state or country and doing business in Tennessee, . . . . ” Thus, a corporation is not subject to excise and franchise taxation simply because it is organized for profit. The corporation must also be “doing business in Tennessee” during the year of the assessment. The term “doing business” is not defined anywhere in the chapter on franchise taxes or the chapter on excise taxes. Therefore, the task of defining the term is left to the courts. Since there have been several decisions setting forth the perimeters of the term “doing business,” I feel a review of these decisions is not only helpful but necessary.
Tennessee cases construing the term “doing business” have not arisen under the statutes here involved. Instead, the cases have arisen under the apportionment provisions of the franchise and excise tax statutes. T.C.A. § 67 — 2710 and 67 — 2916 (now superseded). These provisions allow a corporation which is “doing business in Tennessee and elsewhere” to escape taxation upon the earnings and assets attributable to their operations “elsewhere” than Tennessee. Although it might be argued that “doing business” for the purpose of the apportionment statutes involves more substantial activities than “doing business” for the purpose of the taxing statutes, this precise proposition was expressly rejected by this Court in Bluff City Transfer & Storage Company, Inc. v. Woods, filed at Nashville October 23, 1978. Therefore, we must assume that if a corporation’s activities in another state are not consequential enough to entitle it to apportionment, those same activities would be insufficient to confer the taxing power upon this state if those activities were the corporation’s sole nexus with Tennessee. With that premise, we turn to the Tennessee decisions.
Perhaps the most comprehensive opinion on the subject is Navarre Corporation v. Tidwell, 524 S.W.2d 647 (Tenn.1975). Navarre Corporation utilized independent brokers located in various states to augment soft drink sales in states where the company had no full time employees. The corporation also had two full time employees who resided outside of Tennessee. In addition, the corporation rendered management services to bottling companies in other states and abroad. Nevertheless, this Court held that Navarre’s contacts outside Tennessee were not consequential enough to constitute “doing business” “elsewhere.” Justice Har-bison’s opinion in Navarre examines three earlier Tennessee cases on the subject: John Ownby Co. v. Butler, 211 Tenn. 366, 365 S.W.2d 33 (1963); Roane Hosiery, Inc. v. King, 214 Tenn. 441, 381 S.W.2d 265 (1964); and Signal Thread Co. v. King, 222 Tenn. 241, 435 S.W.2d 468 (1968). Since the opinion sets forth the facts in each of those cases, no detailed recitation of the facts *883need be made here. Suffice it to say that in each case the corporation engaged in sales in other states either through the use of full time employees or independent sales agents. In each case the Court held that there was an insufficient “. . . nexus with the other jurisdiction to bring it within the concept of ‘doing business’.” 524 S.W.2d 651.
These three cases coupled with Navarre illustrate that the inquiry into whether a corporation is “doing business” necessarily involves a qualitative and quantitative analysis of the activities of the corporation. In fact, in Signal Thread, supra, even the voluntary payment of taxes to another jurisdiction was held not to entitle the corporation to apportionment where the corporation’s activities elsewhere were not substantial enough to be considered “doing business.” Such an examination is perhaps even more critical when, as here, the existence of taxing jurisdiction is at issue. This is so because in this type of case the court cannot look to the payment or non-payment of taxes in the other jurisdiction as it can when the issue is whether the corporation is doing business “elsewhere.” This inquiry is also required by the taxing statute because in order to give meaning and effect to the term “doing business” the Court must look into the corporation’s activities. Were we to hold that a corporation subjects itself to taxation simply by filing a corporate charter in Tennessee, we would turn the statutory language “... and doing business in Tennessee ...” into surplusage.
In my judgment, the majority opinion comes perilously close to just such an interpretation and reaches a result which is inconsistent with John Ownby, Roane Hosiery, Signal Thread, and Navarre, supra. For example, Cook Export’s activities in Tennessee cannot by any stretch of the imagination be characterized as more substantial than were those of Navarre Corporation in places elsewhere than Tennessee. Cook Export had no salespersons, no clerks, no secretaries, and no bookkeepers. It had no grain warehouses or vehicles. It made no calls to overseas merchants. In short, its activities were very limited. The majority opinion in this case, however, suggests that if in Navarre, the corporation had paid a large commission to an out of state sales agent, the payment of this large commission pursuant to contract would have qualified Navarre Corporation as “doing business in Tennessee and elsewhere” even if they had had no salaried personnel or assets whatsoever outside of Tennessee.
In addition the majority opinion seems to rely upon facts which in my judgment serve only to clutter a proper analysis of this issue. These facts include Cook Industries’ principal place of business, Cook Export’s principal place of business, the failure of Cook Export to pay taxes in other states, the activities of the parent corporation, the amount of Cook Export’s paid in capital, the existence of corporate officers, and the adoption of a corporate seal. The parties have conceded that Cook Industries is doing business in Tennessee, that Cook Export is a bona fide corporation, and that if doing business anywhere at all, Cook Export is doing business in Tennessee.
I find it puzzling that the majority labels “untenable” the proposition that Cook Export could be recognized as a DISC under the federal tax law and not recognized as “doing business in Tennessee.” I know of no cases even intimating that the Internal Revenue Code determines the way Tennessee courts interpret our statutes.
Finally, the majority also relies upon the fact that Cook Export kept books and records, paid dividends and accomplished routine banking transactions. I respectfully submit that these facts are also of little or no significance since it is entirely possible for a corporation to keep books and records, pay dividends, and transact banking business before it ever engages in any gainful activity whatsoever.
Cook Export’s only significant activity was its entering into contracts with its parent Cook Industries and with another Cook Industries subsidiary, Riverside Industries, Inc. So the proper issue before this Court is whether these activities constitute “doing business in Tennessee.” If this were the *884first case in this jurisdiction interpreting the term “doing business,” a viable argument could be made that entering into these contracts does constitute “doing business.” When I compare, however, the activities of Navarre Corporation outside of Tennessee to the activities of Cook Export in Tennessee, I cannot reconcile Navarre, supra, with the result reached by the majority.
This is not to say that these substantial earnings and assets should have escaped excise and franchise taxation altogether, only that the Commissioner failed to tax the proper entity. The Commissioner should have attributed to the parent, Cook Industries, the earnings and assets of its subsidiary, Cook Export. This approach is more consonant with our taxing statute. It neutralizes the State’s insistence that it is impossible for a corporation to accumulate so much in “earnings” without “doing business.” It alleviates the concern that business conglomerates such as this will achieve a permanent tax exemption. Finally and most importantly, it leaves the Navarre line of cases undisturbed.
Under the excise tax statutes applicable during the tax years in question, the term “earnings” is not well defined. As ordinarily used the term involves “. .. compensation for labor or the use of capital.” Webster’s Third New International Dictionary, p. 714 (1976). Thus, the “earnings” which the Commissioner seeks to tax here are actually the result of Cook Industries’ labor and employment of capital and should be so characterized. Under the statute, we do know that “earnings” do not include dividends received from a wholly owned subsidiary which paid excise taxes. Acts 1923, Ch. 21, § 1. When the wholly owned subsidiary does not pay excise taxes, however, dividends received by the parent would presumably be considered “earnings.” If, therefore, the Commissioner did not assess Cook Export, dividends received by Cook Industries from Cook Export would be considered “earnings” for the purpose of the applicable excise tax statute. The statute is silent, however, as to whether the State must wait until distribution of the dividend to the parent to tax these earnings or whether the State may attribute the subsidiary’s “earnings” to the parent in the year in which they were earned. Since the excise tax is a tax upon the privilege of doing business, it is more consistent with the purpose behind the excise tax to tax the entity doing the business in the year the business was done. As to franchise taxation, assets available for use by the parent but in legal possession of a wholly owned subsidiary not paying franchise taxes would escape franchise taxation altogether if attribution was not allowed. In summary, when the Commission does encounter a subsidiary wholly owned by a corporation doing business in Tennessee and the subsidiary cannot be taxed because its activities do not constitute “doing business” in Tennessee, I find it consistent with our taxing statute and corporate realities to attribute these earnings and assets to the parent. I recognize the statute contains no express guidelines for determining when attribution is appropriate. We could look for guidance, however, to the excise tax exemption for dividends paid by a wholly owned subsidiary not paying excise tax and only utilize attributions in that type of situation. In any event, it will be fairly unusual for a subsidiary to have taxable earnings and capital and yet not have engaged in substantial enough activities to be considered “doing business.”
In this case, attribution may not now be possible because of the failure of the Commissioner to attempt to tax the parent or seek a declaratory judgment on the issue before the statute of limitations ran. See, T.C.A. § 67-1323. I recognize that this would be a windfall for Cook Industries but that should not and does not affect my opinion as to the proper disposition of this case. I would note that there appears in the record an Opinion of the Attorney General which raises the issue of attribution but concludes, erroneously in my opinion, that attribution is inappropriate because of the lack of express guidelines in the statute. I point this out to show that the Commissioner was alerted that attribution was a possible alternative to taxing the subsidiary *885but nevertheless took no action to preserve his right to sue.
Since I would hold that Cook Export’s activities are insufficient in quantity and significance to constitute “doing business in Tennessee,” I would affirm the Chancellor.
I am authorized to state that Mr. Justice Brock joins with me in this dissent.