State v. Jasco Aluminum Products Corp., 11547

• Decision Date: 08 November 1967
• Docket Number: No. 11547,11547
• Parties: STATE of Texas, Appellant, v. JASCO ALUMINUM PRODUCTS CORPORATION et al., Appellees. . Austin
• Court: Texas Court of Appeals

Page 409

421 S.W.2d 409

STATE of Texas, Appellant, v. JASCO ALUMINUM PRODUCTS CORPORATION et al., Appellees.

No. 11547.

Court of Civil Appeals of Texas.

Austin.

Nov. 8, 1967.

Crawford C. Martin, Atty. Gen., George Cowden, 1st Asst. Atty. Gen., John R. Grace and Thomas M. Thurmond, Asst. Attys. Gen., Austin, for appellant.

Coleman Gay, Joseph Latting, Austin, for appellees.

PHILLIPS, Chief Justice.

This is a suit for the collection of delinquent franchise taxes, penalties and interest due by a foreign corporation for doing business in the State of Texas under a certificate of authority granted it by the State. Fireman's Fund Insurance Company, the maker of a surety bond guaranteeing the payment when due of all fees and franchise taxes to the State of Texas, was also joined as a defendant.

The trial court rendered a take nothing judgment against the State and the State has perfected its appeal to this Court.

We affirm.

Appellee Jasco Aluminum Products Corporation is a New York corporation which acquired its Certificate of Authority to do business in Texas for a ten year period on January 5, 1962. Appellee Fireman's Fund Insurance Company wrote a surety bond in the amount of $500 in accordance with the provisions of Vernon's Ann.Tex .Rev.Civ.Stat. art. 12.06(3), Title 122A, Taxation-General. Under the provisions of Article 12.09, Title 122A, Jasco Aluminum Products Corporation became obligated to make its First Year Franchise Tax Report on or before May 1, 1963. No such report was ever filed.

In accordance with Article 12.16, Title 122A, Jasco Aluminum's right to do business was forfeited on July 16, 1963 and proper notification was sent to both appellees.

The State is before us on two points of error, the first being that of the trial court by rendering judgment that it take nothing by its suit after it had established a prima facie case against appellees; that the State, upon submitting to the trial court certain official documents and the trial court's action in admitting same into evidence, established a prima facie case and shifted the burden of going forward with evidence to appellees.

We overruled this point.

The State sued Jasco Aluminum Products Corporation and Fireman's Fund Insurance Company, the surety on its franchise tax bond, for $500, not because there was any contention that this amount was due and owing for taxes and penalty, but because this is the amount of the bond. Admittedly, the amount sued for bears no relation to the franchise tax and penalty actually due and owing.

The State contends that it is entitled to judgment for the $500 because the Comptroller's 'Certificate of Franchise Tax Status' in which he states that he asserts a claim for this amount should have been considered to be prima facie evidence that said amount was due and owing, and the burden of going forward with the evidence should thereby have been shifted to the defendants.

We do not agree with this. Here the Comptroller's Certificate says nothing with regard to the amount due except that the corporation did not file the required franchise tax return and that he 'is, therefore, Asserting a claim for the tax in the amount of $500.' (Emphasis added.) This is not a certificate that any amount is due.

The State also contends that the appellees should have had the burden of proving that their liability was less than $500 because 'public policy demands the shifting of such a burden to the defendant, because * * * it would be impossible for the State to prove any other tax liability aside from that related in the certificate as quoted.'

This argument, conceivably, might appeal to the Legislature. However, we know of no statute or rule shifting the burden as recommended. When the State files a suit, as it did in this instance, or when it is sued with its consent, it occupies the same position as any other litigant. State v. Stanolind Oil & Gas Co., 190 S.W.2d 510, (Tex.Civ.App. Beaumont 1945, writ ref'd). Thus, the State was before the court as any other plaintiff and was under the burden of proving its case. Little Miami, Columbus & Xenia Railroad Company v. United States, 108 U.S. 277, 2 S.Ct. 627, 27 L.Ed. 724 (1883).

The State of Texas has at all times had plenary power to examine the principal's books and records to secure the information necessary to compute the tax. Art. 12.12, Title 122A,...