dissenting: K.S.A. 79-1106 (Ensley 1984) and K.S.A. 79-1107 (Ensley 1984) signal the legislative intention of taxing a bank’s privilege of doing business within the state. The privilege tax is in lieu of ad valorem taxes. The tax is paid to the State for the privilege of doing business within the state according to, or measured by, the privilege taxpayer’s net income for the next preceding year.
K.S.A. 79-1106 (Ensley 1984) provides:
“It is hereby declared to be the intention of the legislature to levy a tax on national banking associations, banks, trust companies, and savings and loan associations, which tax shall be in lieu of ad valorem taxes which might otherwise be imposed upon the intangible assets of such national banking associations, banks, trust companies, and savings and loan associations.” (Emphasis added.)
K.S.A. 79-1107 (Ensley 1984) states:
“Every national banking association and state bank located or doing business within the state shall annually pay to the state for the privilege of doing business within the state a tax according to or measured by its net income for the next preceding calendar year or fiscal year ending in the next preceding year to be computed as provided in this act. Such tax shall consist of a normal tax and a surtax and shall be computed as follows:
“(a) The normal tax shall be an amount equal to four and one-fourth percent (4V<i%) of such net income; and
“(b) the surtax shall be an amount equal to two and one-eighth percent (2Vs%) of such net income in excess of twenty-five thousand dollars ($25,000).
*766“The tax levied shall be in lieu of ad valorem taxes which might otherwise be imposed by the state or political subdivisions thereof upon shares of capital stock or the intangible assets of national banking associations and state banks. The state of Kansas hereby adopts the method numbered (4) authorized by the act of March 25, 1926, amending section 5219 of the revised statutes of the United States (12 U.S.C.A. 548), relating to the manner and place of taxing national banking associations located within its limits.”
FDIC was appointed receiver of the bank on November 21, 1985. FDIC did not receive any deposits or make new loans. At a town meeting on November 23, 1985, FDIC’s bank closing manager advised debtors of the failed bank that they should take immediate steps to establish a banking relationship with another financial institution because FDIC was not a bank and was not in the business of making loans.
The BOTA order states in part:
“5. The Director’s Order is brief and holds simply that a 1986 privilege tax return was not required or allowed. Since the return was not permissible, the loss reflected from operations after November 21, 1985, were not allowed.
“6. The fundamental thrust of FDIC’s argument relies on coupling federal income tax provisions with the assessment of privilege tax. FDIC cites K.S.A. 79-1109 as authority for incorporating by reference the provisions of K.S.A. 79-32,138. While it is true that the statutes refer to federal taxable income, the privilege tax is specifically measured from the taxable income from the year preceding the year in which the return is filed. There is no dispute that any losses incurred by either Farmers & Merchants Bank or the FDIC were not incurred until 1985 and 1986. None of the losses which form the substance of this dispute were recognized in 1984.
“7. There are significant differences between the privilege tax and corporate income tax. First Nat’l Bank of Manhattan v. Kansas Dept. of Revenue, 13 Kan. App. 2d 706, 779 P.2d 457 (1989). The Board finds it significant that the measure for privilege tax purposes is the taxable income from the next preceding year and is paid for the exercise of banking privileges prospectively. See K.S.A. 79-1107.
“8. The bank was closed on November 21, 1985, and surrendered its license and privilege to do business as a bank on that date. The process of liquidation or winding up is not identical to doing business. Neither the corporate privilege nor franchise are exercised by the receiver. State v. Sessions, 95 Kan. 272, 147 P.2d 789 (1915) and Wilson v. Bank, 77 Kan. 589, 95 P[ac], (1908). In Sessions, the bank was held liable for tax payment due to the fact that it exercised its franchise in the first year that a tax was imposed. We believe that the converse should also be true, i.e., that the first year after the bank surrendered its license *767is the first year in which it is free of privilege tax. Without the exercise of the privilege, there is no tax liability. From and after November 21, 1985, there was no reason to reopen the privilege tax issue. We conclude that the purpose of the privilege tax is to levy against those who exercise the privilege of doing banking business. As neither FDIC nor Farmers & Merchants were doing banking business when the losses were incurred, there is no privilege tax incidence. Just as the last year’s income from operations escapes recognition, so also the last year’s losses escape recognition. There is no basis to redetermine income when no losses are recognized.
“10. The Board concludes that the losses sustained by Farmers & Merchants Bank or the FDIC are not recognizable for privilege tax purposes. As such, there is no cause to redetermine the income for years prior to 1986.”
In Kansas the taxpayer carries the burden of proving that an exemption is clearly authorized. Palmer v. Commission of Revenue and Taxation, 156 Kan. 690, 696, 135 P.2d 899 (1943). In my view, the burden referred to in Palmer applies to FDIC’s claim for a NOL deduction.
I would affirm the order of BOTA affirming the Kansas Department of Revenue’s denial of FDIC’s claim for a refund of privilege taxes.
Lockett, J., joins the foregoing dissenting opinion.