Untitled Texas Attorney General Opinion ( 1950 )

EATTORNEYGENERAI.,
OFTEXAS
AunTxN 11.-l-ExAa
PRICE DANIEL
ATTORNEYGENERAL
hAay2Bp1950
Hon. James C. Martin OpioBon MO. V-lO64.
County Attorney
Nueces County Re: Taxatiw of a sh&p owned by
Corpus Christi, Texas a Louisiana corporation and
listing Corpus C&iisti, Tex-
Dear Sir: as, a.6 &a home port.
Your request for an opinion reads in’part as fot#,awsr
‘“The Lykes Brothers .Ste&mship Company Incor-
porated is a Loaisiana Corporation, maintain.ing its
principal. oM6re and place of bus6nes6 i28New Orleaars,
Louisiana, It; principal place of business ia maf~ntaln- ”
ed in ‘N.ew O~l,eeans and tb,e main operA,tionS of’ the Corn-,
pany are -led ‘through that office. The corp,orate
: records, SW&, lxwks~, &C i, s,m kept in N~ew~,Orleans,
land the di?cecttolrs meet jn that cf+y. The Lykes Br@h- :,
ers Steamship CQinpany has a number of steamships
which Fats gtiployed exc~sbvely in interstate and for-
eign commwcre j Ationg the:;e s+Qamships is the S. S.
Elizabeth Lykes, which was acquired by the Lykes
BrothwBi SWamship Company an or about. the 14th day
of March, 1946, In accosdanre with. Federal law, the
Lykes Bszothers Steamship Company,listed the S. S.
Elizabeth Lykes home pert as Corpus Christi, Texas.
This ship, and other skips of the Lykas Line, have
picked up cargo a,t Gorpw Ghsisti in connection with
operations of intwstate and foreign commeyce, I am
not certain how many trips the Elizabeth Lykes has
made to Cozpca~sGhrisbi; but in at least tacP i.trstancaa,
she lifted GW~D foa: F&-emw$ GErmany,, and for Italy.
‘“It is requested that your office prepare aa opin-
ion in regaad tcpthis matter,“’
.
iSma. James C. h&rtin, Page 2 (V-1064)
Section 11 of A~ttola VIII G&t&s Taxss Constitution reads:
war, $emes C, Wrtin, Peg4 3 (V-1064)
By an ancient diction genarally recognized by comity
end expzessod by the maxim “mobibia sequuntuc por-
SOXWAml,l the situ@ of personal propepty of ovcey de-
ecripticnp howerver ponderous amd unwieldy aPd W~BPP
4~4~ actually kept or located, was at the domieQ of the
owenw and subject to tine jurisdiction of the ogsne~‘.a
sovereign; in iegal con&mplation its location changed
with every chenge of the owner ‘8) dom&ctl, Tblr rule
expresses a comprehensive and general rule applLce-
ble to the taxation of personal property, espec6rlly ir-
tangible personal property, Domfcil of the wuet ia an
important aad obten a coatrcllie~ tctoz, It ia prima
fecle the place of texathm Hn the absence of stetutee
to the contrary4 and of aayth&ng to ehow it bee acquir-
ed an estuel situs elaewhsro the (lenera rule $0 that
for puspoaes of taxation lll personal property hes its
eittis at the domicil of the owlet; unless it has acquir-
ed a de%irnite Bitus o’l~wlae~a, or unless other provi-
sion ia made by stat&e, .s~h property is taxable to the
ownem %ea the county, by* o$ tmwntcw otkw taxin@ dio-
trict ia which the owlrnos Ilives a& We bbr domicil. Thin
The coast@ hava gonereUy lb@kdthet thm maxim ‘“mobi&&
84quumtNP psrpoomm m is iwppbicabb wboe@ the property bes 4c-
quiped an actual situs bane ````~d~6``~ 0th~ then the domicile of
the owner. The fj@@~eD ~lslo a6 to t)Dlrtexetie`` of ps~sonel proyr-
tp &a Taxas wes clarnly stet@d innAtttirwoy GQNW``“S Opinion No.
v-373 es fCllOW~S
“Tke common lew maxim dl “mobilie sequuntur
praowm’ (movabliors follow the person), that io, that
pecsclrarl prowrtp h&s its legal 8Lttaafor taxation puc-
poses et the place of the owner ‘s domhile, in the gen-
eral paI4 in Terra. AMoragh the ConstlEtation of Texeo
(Art* VU& Sec. !.I) garovadeo tlaat “all aoperty, whetb-
6% owned by p``sonn or corporations abrlh be assass-
cd foe taxeticpn, es& taxes pa&d %atke cou&ty where sit-
uated,’ it has b@en held by the Seprcme C&t ob Torae
XIZF%is proviaicn ia no more than a declaration of the
common law PN~O ina’thert“sirmce it haad~eBerence to the
taqiarg power, it eviddantLy mant property where situated
’ ,
Hon. Barnes C. Martin, Page 5 (V-1064)
‘“Tlae Legislature may, in certain instances, give
to psoperty an artificial aitus for the purpose of taxa-
tion; but when the property is physical in character,
or of a nature that can acquire an actual satus, It must
under our Constatutton be taxed 18 the county where ac-
haably situated or located. The fmdang of the court is
to the effect that th@se vessels so taxed have an actual
situs at Port Arthur> in the county of Jefferson, and
are not and have never been within waters located with-
in the territorial jurisdiction of the city of Galveston,
““That vessels may acquire an actual situ6 is a
proposition too well settled to br questioned, and that
the place of enroblment and registration 16 not control-
hag, ih the actual satus as elsewhere. 1
The case of Ayer and Lord Tie Go. v. Kentucky, 282
U.S. 409 61906). is directly in point on this question. The facts in
that caie’wiri~that the takpayk, an Illinoi; corporation, had en-
rolled, in accordawce with the laws of the United States, several
steamboats and barges at the post of Paducah, Kentucky and that
the words ““Paducah, KentuckyL” were painted on the stern of the
steamboats. Kentucky brought suit to collect property taxes which
has been assessed against the vessels, alleging that Paducah was
their homeport, The United States Supreme Court held that Ken-
tricky bad no power to tax the veasehz because there was no finding
that they had acquired an actual situs in Kentucky and they were
therefore taxcable at the domici%e (IWmia) of the owne8, The court
said (at page 421):
““The general rule has long b44n settled as to
vessels plying between the ports of different States,
engaged in the coastwise trade, that the domicit of the
OWWQ~is ihe situs of a vessel for the purpose of taxa-
tion, wholly irrespective of the place of enrollment,
subject, however, to the exception that where 6 vessel
engaged in interstate commerce has acquired an actu-
a1 situs ha a State other than tha place of the drmicil
cb the otamer, it may 5h4m be taxed because w&Ma the
jurisdiction of the taxiang authority. ”
And at page 423:
“As in the c,aee at bar, the owner ef the vessels
was domiefled En Ill~fnois and the vaaseLa were not em-
ployed excEu~sive\y in commerce between points ia the
State of Kentucky, but were engaged in traffic between
that State and the ports of other States, including zlli-
nois, ft seeme obvious that, as a question of fact they
had no permanent &us in the Saate of Kentucky with-
,in the rule announced in the Old Dominion Steamship
casea The right then of, the State 96 Kentucky to tax the
vessels must sole@ depend upon the &ct that they were
enrolled at tlae port of Paducah in that State. But, if
enroQme,nt at that place wa6 wMt&n &he s,tatutes, it is
wholly immaterial, since the previouc decisions to
iv&h we have referred deeirively establish that en-
rollment is irrehzvant to the question of taxation, be-
cause the power of taxation ofvc$scIa depends either
upon the actual domicil ot the owner or the permanent
a%%~?et the property within the taxing juripdic,tion. “r
The que&ton of the sitas of vessels for taxation pur-
poses was again before, the Supreme Couri in Southern Pactif& Ge.
222 US, 63 (1911), The Court, atter revieww a~li
t e re ate cases, reaffigmed
5fT=PT the rule of taxation that a vessel is
,taxabie at the domicile od!the owner unle#s the vessel has an actu-
al situs elsewhere. The Cowt ratd (96 pqc 68):
‘As the place of enrolhnent is taat L# WeIf detsr-
minativa of the place of taxation, it is obvious that the
right to select a place to be marked upon the etern as
A ptace of hail, ox borne ~0~0, doer set confer the arbi-
trary right upon the owner of salecting a place for the
taxation of his vesseI. To gbve to the statutt this con-
struction, said this court in Ayer & L. Tie Ce. v, Kea-
tucky, cited above, ‘would be rimply k bald that its
purpoes was to endow the owner with the faculty of ar-
bitra+tly aelorctlng 6 place boa: the tsxation of his vessel,
%ad&ancc of 0b.q)Law of dombcbl, and in disregard of
bhe EDfpIIctple of wsxbal ohs.’
I
Hon. James C. Martin, Page 7 (V-1064)
must be that of the domicile of the owner, since that is
%a situs assinned
Y to tannibles where an actual situs has
not been acquired elsewhere, The ancient maxim which
assigns to tangibles, as well as intangibles, the situs of
the owner for purposes of taxation, has its foundation
in the protection which the owner receives from the gov-
ernment of his residence; and the exception to the prin-
ciple is based upon the,theory that if the owner, by his
own act, gives to such property a permanent location
elsewhere, the situs of the domicile must yield to the
actual situs and resulting dominion of another govern-
ment, ” 3
Tha determination of whethar a vessel or ship has ac-
quired a tax situs in a State other than that of the owner’s domicile
is in the first instance a question of fact which can be resolved on-
ly after a,consideration of all the circumstances relating to the
matter I You state in your letter that the Lykes Brothers Steam-
ship Company, the owner of the ship, is a Louisiana corporation,
that it maintains its principal office and place of business in New
Orleans, Louisiana, and that the ship has made only several calLs
to the Port of Corpus Christi since the year 1946. Under the au-
thorities previously cited, although the company has listed Corpus
Christi as the homeport, tha owner of the ship is domiciled in Lou-
isiana and the shfp fs taxable in tkat State unless an actual tax situr
has been estabRshed elsewhere, In order for the ship involved in
this question to have acquired an actual tax situs in Nueces County,
it must have had a more Q% less permanent location, 8s distinguish-
ed flpom a transient or temporary one, in the county,
It is our conclusion, based on the facts given us, that,
unds~ the autlmritbes cited above@ the SS, Elizabeth Lykes does not
have an actual tax situs in Nueces County, The ship is therefore
AOL subject to ad valorem taxation by Nueces County,
SUMMARY
The situs of itangibLe personal property for the
purposes of taxation is at the owner’s domicile unless
it has acquired an actual tax sihus elsawhere. Under
3 For recent cases on this question see Ott v, De Bardeleben Coal
166 F.2d 509 (C,C.A, 5th 1948, rev, on ether grndr. 334
%F 169, 69 S.Ct, 432); Guinness v, King CountyP 202 P.2d 737
(iash; Sup. 1949).
4 2 Cooley, Taxation (4th Ed,) p* 975, fi 451; Annotatia n, &ID .,.
A, L,.R. 7078 41 Am. Jur, $68, Taxation, 8 453,
\
Ifon. James C, Martin, Page 8 (V-1064)
the facts presented tbe S.S. ELaEabeth Lykes is not sub-
ject to ad valoaem taxation in Texan. Aysr and Lord
Tie Co. v. Kentucky, 202.U,& 409 IBOb); Southern Pa-
cific Co, v. Kentucky 222 U,S, 63 1911);
veeton v. J. M. Guffe; Petroleum Co., II
frex. Civ. App, 1908, oreor ref.).
Your* very truly,
PRKX DA&mEL
&bmey clena~rrat
APPROVED:
w. v. Ge@mrt
Taxation Divtefoa
Joe R. Greenhill
First AssiaWnt
prtce Llrti*t
Attor my Ckiaeral
FL/WiWb