dissenting.
Less than two years ago, this Court held that “the critical distinction between an income tax and franchise tax is that the former is imposed to compensate the state for benefits already received, while the latter is imposed and payable in advance for the privilege of exercising the right to do business in the state in the future.” Herschend v. Director of Revenue, 896 S.W.2d 458, 460 (Mo. banc 1995), citing Educational Films Corp. v. Ward, 282 U.S. 379, 388, 51 S.Ct. 170, 171-72, 75 L.Ed. 400 (1931). As we explained, “if a corporation ceases to do business during a particular year in which it has generated income, it would still be subject to income tax, but not franchise tax.” Id. Inexplicably, the majority ignores or disregards this holding despite the fact that the income component of the Texas tax in question, like the Tennessee tax in Herschend, compensates the state for benefits already received and is due even if the corporation ceases to exist and discontinues doing business in the state. In particular, the earned surplus component of the Texas tax, payable on May 15 of each year, is computed on the in-state earnings of the corporation for the previous calendar year ending December 31. Moreover, should the corporation cease doing business in any calendar year, it must still pay tax on the earned surplus component for the period from January 1 of that year to the date it ceased business. A tax imposed in this fashion is, in my view, an income tax.
As I understand the majority, the Texas tax cannot be an income tax because it has both an income component and a capital contribution component, and the one, apparently for some unstated policy reason, cannot be *213separated from the other. I see no reason, however, to deny the Missouri income tax credit for the portion of the Texas tax that is attributable solely to income. A similar situation was presented in In Re: Baker, 1990 WL 169491 (N.Y. Tax App. Trib.1990), in which the New York court, applying New York’s counterpart to Missouri’s § 143.081.1, RSMo 1994, was faced with a New Jersey “franchise” tax that had both income and net worth components. Noting that the label of the tax as a “franchise tax” was not conclusive, and relying on federal authorities interpreting IRC § 901(b), the comparable federal income tax law, the Baker court concluded:
Where the foreign law imposes a tax that is the sum of two or more separately computed amounts (i.e. the New Jersey tax imposed here), then each component is tested to determine if it qualifies as an income tax. (Citations omitted)
Id. at 6. In the case at hand, the Texas tax should be treated no differently.
Under the facts of this case, I would hold that to the extent the Texas tax is attributable to federal taxable income, it is an income tax for which the taxpayer is entitled to a credit against Missouri state income tax.
For these reasons, I respectfully dissent.