265 S.W.2d 154 (Tex.Civ.App.

Docket Nº:10195.
Citation:265 S.W.2d 154
Case Date:February 03, 1954
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas

Page 154

265 S.W.2d 154 (Tex.Civ.App. —Austin 1954)



BUTLER et al.

No. 10195.

Court of Civil Appeals of Texas, Austin

February 3, 1954

Rehearing Denied Feb. 24, 1954.

Page 155

F. L. Kuykendall, Austin, for appellant.

John Ben Shepperd, Atty. Gen., W. V. Geppert, L. P. Lollar, Asst. Attys., gen., for appellee.

HUGHES, Justice.

Kansas City Title Insurance Company, a Missouri corporation, appellant, sued the Board of Insurance Commissioners, the Attorney General and Treasurer of the State of Texas to recover $36,413.76, plus accrued interest, being gross receipts taxes for 1951, which appellant had paid into the State Treasury under protest.

There is no dispute as to the material facts which are either stipulated or established by unimpeached documents, but there is dispute as to the legal deductions and conclusions to be drawn therefrom, including the issue of fraud. This issue is presented by appellees on the ground that appellant has purposely manipulated its affairs so as to avoid the payment of taxes and that this constitutes fraud. We express no opinion upon this feature of the case because we have determined that appellant has not made authorized investments in Texas securities sufficient to entitle it to the tax rate for which it contends.

The taxing statute involved is Art. 7064, Vernon's Ann.Civ.St.

Appellant contends that its tax under this Article should be 1.1% of its gross receipts for the reason that it had invested in admissible Texas securities on December 31, 1951, more than 90% as much as it had invested in Missouri, the State in which it had on such date its highest percentage of admitted assets invested.

In order to be successful in this contention it is necessary for appellant to show that $560,000 which it has invested in the capital stock of the Title Building Company, a Texas corporation, chartered December 22, 1948, is invested in an admissible Texas security.

The same question was presented but not decided in our Kansas City Title Ins. Co. v. Butler, Tex.Civ.App., 253 S.W.2d 318, writ ref. N.R.E.

For the purposes of the Act Texas securities are defined by Art. 7064. It is conceded by the parties that none of the

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securities specifically mentioned in the statute are applicable and that if the capital stock in which appellant has invested is admissible then it must come within this general definition in the Act:

'* * * in any other property in this State in which by...

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