Ross Amigos Oil Co. v. State
| Decision Date | 03 April 1940 |
| Docket Number | No. 7654.,7654. |
| Citation | 138 S.W.2d 798 |
| Parties | ROSS AMIGOS OIL CO. et al. v. STATE. |
| Court | Texas Supreme Court |
Mann & Mann and Max A. Mendlovitz, all of Laredo, for plaintiffs in error.
Gerald C. Mann, Atty. Gen., and Geo. W. Barcus and A. S. Rollins, Asst. Attys. Gen., for the State.
J. W. Townsend, of Austin, for Tax Board.
Edwin D. Guinn, of Rusk, for Secretary of State.
The State of Texas brought this suit in the District Court of Webb County against the Ross Amigos Oil Company, a Texas Corporation, and its directors, to recover the amount of the franchise tax which the State claimed was due for the years 1930 to 1938, inclusive. Judgment was rendered in the trial court in favor of the State for the sum of $1,159. An appeal was taken by the defendant to the Court of Civil Appeals at San Antonio, and the judgment of the trial court was affirmed. 131 S.W.2d 316. A writ of error was granted.
In this opinion we shall designate the State of Texas as the State, and the Ross Amigos Oil Company as the Oil Company.
Plaintiffs in error urge two main contentions: (1) That the Court of Civil Appeals erred in holding that Chapter 3 of Title 122, Article 7084 et seq., of the Revised Civil Statutes of Texas, Vernon's Ann.Civ.St. art. 7084 et seq., renders them liable to pay the corporate franchise tax imposed therein, after the Oil Company's right to do business in this State had been forfeited by the Secretary of State; and (2) that when Article 141 of the Penal Code is considered in connection with Article 7084 et seq., supra, the law evidences a clear intention to levy a franchise tax on such corporations for the privilege of doing business in this State, and that when the Secretary of State forfeited the right of the Oil Company to do business, it was no longer liable for such franchise tax during the interim for which it was not privileged to do business in this State.
The cause is submitted on an agreed statement of facts. The Ross Amigos Oil Company was incorporated in 1922 under the law of Texas. It paid its franchise tax up to the year 1930. The Secretary of State, after proper notices, did, on August 1, 1930, notify the Oil Company that its right to do business in Texas had been forfeited, because of its failure to pay the franchise tax. The Oil Company was incorporated for the purpose of establishing and maintaining an oil and gas company, with the right to acquire real and personal property and enter into drilling contracts and acquire leases. On February 2, 1938, the Oil Company was dissolved, by consent of its stockholders. At the time of its dissolution the other plaintiffs in error herein were its directors and the corporation owned a considerable amount of property. The directors of the corporation, after its dissolution, took charge of the property as trustees, and were to pay all of the corporation's debts and then divide the remainder of the property among the stockholders, as provided by law. No receiver was asked for or appointed.
The Oil Company for the period from August 2, 1930, to February 2, 1938, inclusive owned and operated producing oil wells in this State, receiving the annual gross receipts therefrom, and reporting their entire production to the Comptroller of Public Accounts, as required by law, and filed a capital stock tax return with the Bureau of Internal Revenue as of the date of dissolution of said corporation on February 2, 1938.
This case involves the construction of Articles 7084 to 7097, inclusive, of the Revised Civil Statutes of Texas.
Article 7084 provides: "Except as herein provided, every domestic and foreign corporation heretofore or hereafter chartered or authorized to do business in Texas, shall, on or before May 1st of each year, pay in advance to the Secretary of State a franchise tax for the year following, * * *." Then follows the basis upon which the tax is calculated. Article 7089, as amended in 1931, Vernon's Ann.Civ.St. art. 7089, provides: "all corporations now required to pay an annual franchise tax shall, between January 1st and March 15th of each year, make a sworn report to the Secretary of State, on blanks furnished by that officer, showing the condition of such corporation on the last day of its preceding fiscal year." This article also provides what, the reports shall contain, and further provides: "Any corporation which shall fail or refuse to make its report shall be assessed a penalty of ten per cent (10%) of the amount of franchise tax due by such corporation, payable to the Secretary of State, together with its franchise tax."
Article 7091 in effect provides that any corporation which fails to pay such franchise tax shall thereupon become liable to a penalty of 25% of the amount of such franchise tax due by such corporation. If the amount of such tax and penalty is not paid in full on or before the first day of July thereafter, such corporation for such default shall forfeit its right to do business in this State. Such Article also provides that such forfeiture shall be consummated without judicial ascertainment by the Secretary of State entering upon the margin of the record kept in his office relating to such corporation the words "right to do business forfeited" and the date of such forfeiture. Any corporation whose right to do business shall thus be forfeited shall be denied the right to sue or defend in any court of the State, except in a suit to forfeit its charter.
Article 7092 provides how the notice of such forfeiture shall be given by the Secretary of State, and the time and manner of giving such notice. It also provides that when such tax and penalty shall have been fully paid to the Secretary of State, he shall revive the right of the corporation to do business within this State by canceling the words "right to do business forfeited" upon his record, and by endorsing thereon the word "revived" and the date of such revival. This Article further provides that if any domestic corporation whose right to do business within this State shall hereafter be forfeited under the provisions of this law, and shall fail to pay the Secretary of State on or before the first day of January next following the revival the amounts necessary to entitle it to have its right to do business revived under the provisions of this law, such failure shall constitute sufficient ground for the forfeiture of its charter by judgment of any court of competent jurisdiction.
Article 7094 describes the corporations that are exempt from the provisions of this law.
Article 7095 provides that the Attorney General shall bring suit...
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...for the payment of the annual franchise tax, even though it did not thereafter conduct its authorized business. Ross Amigos Oil Co. v. State, 134 Tex. 626, 138 S.W.2d 798; Federal Crude Oil Co. v. State, Tex.Civ.App., 169 S.W.2d 283, application for writ of error refused. It follows that th......
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...this state, the charter of the corporation has not thereby been cancelled nor has the corporation been dissolved. Ross Amigos Oil Co. v. State, 134 Tex. 626, 138 S.W.2d 798; State v. Dyer, 145 Tex. 586, 200 S.W.2d 813. The effect of such a forfeiture is to prohibit the corporation from doin......
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Davis v. State, 3-92-279-CV
...fees provided therein is raising of revenue, such fees are occupation taxes, regardless of how designated); Ross Amigos Oil Co. v. State, 134 Tex. 626, 138 S.W.2d 798, 800 (1940); Wilburn v. State, 824 S.W.2d 755, 761 (Tex.App.--Austin 1992, no writ) (sole purpose of franchise-tax statute i......
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...because they are the corporate agents responsible for seeing that such reports are made and taxes paid. See Ross Amigos Oil Co. v. State, 134 Tex. 626, 138 S.W.2d 798, 800 (1940) ("The penalties imposed for failure to pay the franchise tax are heavy, and were evidently provided to hasten pa......