Untitled Texas Attorney General Opinion ( 1951 )

‘%KsrIN 11. Trzvas
PRICE DANIEL
.\TTORXEY CF.NE”Al
August 16, 1951
Hon. John Ben SheDperd Ooinion No. V-1239
Secretary of Statk’
Austin, Texas Ae: Authority of the Sec-
retary of State to
waive, compromise,or
reduce the penalties
for late filing of
franchise tax reports
(Art. 7089) and fran-
Dear Sir: chise taxes (Art. 7091).
You.have requested the opinion of this office
on the folqowlng question:
“May the Secretary of State, under
certain extenuating circumstances . . .
accept late filing of the tax report and
late payment of franchise tax without
levying the penalties of 10 per cent and
25 per cent as provided for in Articles
7089 and 7091, V.R.C.S.?”
In connection with your request you have stated
four examples of “extenuatingcircumstances”which are
actual cases In your fiAes and you refer to a letter opln-
ion of this office addressed to Hon. Paul Ii.Brown, Sec-
retary of State, dated August 23, 1948, which you state
psesents the answer to a different problem.
,The fact that the office of the Secretary of
State was confronted with requests by various corporate
taxpayers that under certain “extenuating circumstances”
the Secretary of State should waive the penalty for late
filing of the franchise tax report prescribed In Article
7089, v.>c.s.,or the penalty for Late pajrm*nrof Qhe
franchise tax prescribed by Article ~7091,V.,C
:.S
*, con-
stituted the basis for the request by Hon. Paul.H. ``r~+~-.
.x thinssame subject He asked whether the penalties
prwided for’ln each of the foregolng Articles were man-
:&tory or whether ttieSecretary of Stare had the author-
ity CG waive, compromise, or reduce the penalties upon
z?plicationand for cause deemed sufficient in the dls-
crezicn cf the Secretary af State.
,
Hon. John Ben Shepperd, P%gO 2 (V-1239)
In holding ihat & corporationnhigh 'failsto
file Its franahiae tax report or falls to piryft.6f'ran-
chiBe tax uhen due becoaes fmediatel liable for the
.f POMltlea provided for fti&tfclea 707; 9 and 7091, V.C.S.,
rOepeCtlvely,and that the Secretary of state has no
aU%borlty to wafve, aompromlae,or reduce the pen ltier
10 provided under any clrcwtancefJ, the opinion’ 4 o Hon.
?Bul H. Brown sta$es in part8
“The queetion of whether or not the
provielons of a statute are mandatory is
one of statutory constructfon. 39 .&,x0 .-::..w
..A 9
33* % 14. However, ft 1s settled that:tZ-?yz
is no room for constructionwhen the sts%ce
.--`` ~-~ in Dlain and unamblnuous lan-
is exoressed
guage and its me&l is clear aiidobvious.
39 Tex.JW. 161, I 73 8 a
“me provisions of each of the statlrtes
here in question are expressed in plain an,3
unambiguous langvge. Article 7089, V.C.S.,
clearly providesqhat franchise tax reports
are due between Jinuary 1st and March 15th
of each yea-, but that the Secretary of St.a%
may for good causs shown by any conporstioa,
extend such time up to Mar lat. AK;~ccrpc-
r&Ion failing to file Its report shall be
assessed a penalty of ten per cent. *tic: f’
7Ogl``V.C.S.,Talaoprovides in clear and WA-
tietakable language tlzatI? a corporation
falls to pay its franchise tax when due, ft
ahall thereupon become liable to a penalty
of twenty-five per cent oi the amoun% of
ruch franchise tax due by euoh corporation.
Bowever, even if'the statute6 were ambPguous
and thus aubbjeotto conetructlon, It fs no$ed
that,~lthaa long been the departmentalcon-
rtrmotlon pi the offfoe of the Secretary of
State that'the penaltiee in question are man-
datory and cannot be waived, oompromifacd or
reduoed. The Legislaturehas met aany time8
s:nce such comtructlo~ was given the stat-
utes by the SecretarT of State, but has not
undertaken to change the statute 80 81)to .
alter thla conatmct%on. This offfce doe8
not feel justfffed to held now that the Seo-
retary of state wa6 i%ee:ppor1x1so ooanet37uf``.
the statute. See Iabell vs. QuIf Wnfan Of1
co,, SUP6 C%., 209 S&(&3) 762.
Hon. John Ben Shepperd, Page 3 (V-1239)
“Aa to the question of whether or not
the Secretary of State has authority to
waive, compromise or reduce these penalties,
it is noted that no such authority is given
the Secretary of State by the constitution
or etatutes. It Is the settled law in this
State that Public Officers possess only such.,
authority as is conferredupon them by law,
34 Tex. Jur. 440 8 67. As no authority Is
given the.~Secretaryof State to waive, com-
promise or reduce the penalties provided for
in Articles 7089 and 7091, V.C.S., he has no
authority to do so."
This office has carefully reconsidered the fore-
e;cMg opinion In the light of the factual examples of
extenuating circumstances"referred to and it is the
opinion of 'thisoffice that the holdings of the,opfnion
addressed to Hon. Paul H. Brown, dated August 23, 1948,
are correct and should be reaffirmed. We are 'compelled
to reach this conclusion under the rule of law announced
by the Supreme Court in the case of Federal Crude 011 Com-
any v. Yount-Lee 011 Company, 122 Tex. 21, 52 S.W.2C56,
2 (1932),.as follows:
,"Mherethe officers of the state~govern-
ment, dtifng a long period of years, have con-
strued a statute of doubtful Import and the
same Is later re-enacted by the Legislature in
substantially the same form, it will be pre-
sumed that the lawmaking body knew of the COE-
structlon placed upon Its language by such
officers, and that, if ft uas not aatlsfled
t,hrtIts intention had been rightly interpreted,
.it~uouldhave so changed the verbiage of the
act as to have shown clearly,a contrary inten-
tion.".
',!
; Since the ruling of this office on the ques-
tions i&lved on August 23# 1948, the Legislature has
met in Regular Session In the year 1949, In Called Ses-
sion in the year 1950, and again in Regular Session in
the year 1951. At Its Regular Session in 1949.the Legis-
lature amended Articles 7089 and 7091, V.C.S. 'Acts 51st
Leg,, ch. 536, pa 975, sets. 5 and 7. It must be pre-
sumed that the LecgfslatuPeknew ot the constsuction placed
upon its language by the Secretary OP State and by this
office. it'the Q&slat*@ had not been satisfied that
, 1. _
Iron:'
John Ben Shepperd, plr% :4 (V-1239)
Its intention had been rightly Interpreted,it could have
changed the verbiage of the'two Articles In question so
as to authorize the Secretary of State In his discretion
to walvir,compromise,or reduce the.penaltlesin question
under such circumstancesas were found by the Secretary
of State to be extenuating. This t e Legislature did not
do, and therefore,under the forego Png rule of law, It
must be presumed that the Legislature concurred In the de-
partmental constructionby the Secretary of State and the
opinion of this office.
It Is the opinion of this office that the-Sec-
retary of State has no authority to waive, comp?omlse,or
reduce the penalties provl#ed for failure to make and fl:e
the franchise tax reports !a8required by the provisions
of Article 7089, v.c.s., &d to pay the franchise tax due
as prov%dUd In Artlcler7O+l,V.C.S., the liability for
such penalties being mandatory.
SUMMARY
The Secretary of State has no authority
to waive, compromise,or reduce the penalties
for late filing of tianchlse tax returns as
provided in Article 7089, V.C.S., or the pen-
alty for late payment of franchise taxes as
provided InArtIcle 7091, V.C.S., the liabii-
lty for such penalties being mandatory.
very truly yours9
APPROVED: PRICE DANIEL
Attorney GeEal
Everett Hutchlnson
Executive Assistant
Charles D, Mathews C. K:.Richards
First Assistant Assistant
CKFltwb:em