Anderson-Clayton Bros. Funeral Home, Inc. v. Strayhorn

149 S.W.3d 166 (2004)

ANDERSON-CLAYTON BROS. FUNERAL HOME, INC.; Restland of Dallas, Inc.; Restland Funeral Home; Singing Hills Funeral Home, Inc.; Laurel Land Funeral Home of Forth Worth, Inc.; Blue Bonnet Hills Funeral Home, Inc.; and Blue Bonnet Hills Memorial Park, Inc., Appellants,
v.
Carole Keeton STRAYHORN, Comptroller of Public Accounts of the State of Texas; and Greg Abbott, Attorney General of the State of Texas, Appellees.

No. 03-03-00458-CV.

Court of Appeals of Texas, Austin.

August 12, 2004. Rehearing Overruled December 9, 2004.

Jan Soifer, Susan A. Kidwell, Brim, Arnett, Soifer, Robinett, Hanner & Conners, PC, Austin; Michael Robenstein, Locke Liddell & Sapp LLP, Houston, for appellants.

Christopher Jackson, Assistant Attorney General, Taxation Division, Austin, for appellees.

Before Justices KIDD, PURYEAR and PEMBERTON.

OPINION

Opinion by Justice PEMBERTON.

In this case, we address a rare uncertainty concerning death and taxes: the franchise tax treatment of earnings from out-of-state investments made by Texas prepaid funeral benefits trusts maintained by Texas funeral homes. Appellants, a group of affiliated funeral homes ("Anderson-Clayton"), took the position that these types of earnings were out-of-state receipts for franchise tax apportionment purposes. The Comptroller of Public Accounts audited Anderson-Clayton and disagreed, contending the earnings were instead Texas receipts. This resulted in a much higher franchise tax bill for Anderson-Clayton. A taxpayer suit ensued, and the Comptroller and Attorney General (Comptroller) prevailed below on cross-motions for summary judgment. We affirm the district court's summary judgment.

BACKGROUND

To hopefully simplify and clarify the tax law concepts at issue in this case, we first survey the basic features of prepaid funeral benefits trusts and the Texas franchise taxation system.

Prepaid funeral services

Among the services it offers related to death and burial, Anderson-Clayton permits individuals to prearrange their own funerals, or that of another beneficiary, by purchasing a fixed price contract for future funeral services to be provided after the beneficiary's death. Texas has long regulated these types of prepaid funeral benefits by statute to "provide all safeguards to protect the prepaid funds and to assure that the funds will be available to pay for prearranged funeral services."^[1] These safeguards include a requirement that funeral homes quickly deposit proceeds from customers' purchases of prepaid funeral benefits contracts either:

(1) in a savings and loan in Texas, in an interest-bearing account insured by the federal government;

(2) in a bank in Texas, in an interest-bearing account insured by the federal government; or

(3) with the trust department of a bank in Texas, or in a trust company authorized to do business in Texas, to be invested by the trust department....

Tex. Fin.Code Ann. § 154.253(a) (West 1998).^[2] Each type of account is carried in the name of the funeral provider to whom the purchaser makes payment. Id. § 154.253(b). The funeral provider must maintain the original purchase payments in the account until either (1) the purchaser (consumer) cancels the contract; or (2) the beneficiary dies and the funeral services are provided. Id. §§ 154.254, .262 (West 1998).

During the interim between the deposit of the funds and cancellation or performance of the contract, the trustee of a prepaid funeral benefits trust account must prepare an investment plan and place the funds in certain categories of investments, including secure stocks, bonds and money-market accounts. Id. §§ 154.257, .258 (West Supp.2002). Earnings on these investments are paid into the trust accounts and generally remain until either the contract is cancelled or the beneficiary dies and the contract is performed. However, unlike the original purchase payments, the trust investment earnings can be used by the funeral provider to pay certain expenses, id. § 154.261 (West 1998), and can be withdrawn and retained by the funeral provider after the contract is cancelled or performed. Id. § 154.263 (West 1998).

Texas franchise taxes

Texas imposes a franchise tax on corporations for what is seen as a privilege bestowed upon them by the State allowing them to do business here. See Tex. Tax Code Ann. § 171.001(a)(1) (West Supp.2004); Bullock v. National Bancshares Corp., 584 S.W.2d 268, 270 (Tex.1979). The tax is imposed on "each corporation that does business in this state," is chartered in Texas, or is authorized to do business in Texas. See Tex. Tax Code Ann. § 171.001.

Prior to 1992, the Texas franchise tax was assessed based solely on a corporation's taxable capital. As a result, capital-intensive industries (in contrast to industries, e.g., services, that require fewer fixed assets) bore the brunt of the tax, even in unprofitable years. See General Dynamics Corp. v. Sharp, 919 S.W.2d 861, 863 (Tex.App.-Austin 1996, writ denied). In 1991, the Texas Legislature sought to broaden the franchise tax base by adding "net taxable earned surplus" as an additional basis for assessment. See Act of Aug. 12, 1991, 72d Leg., 1st C.S., ch. 5, § 8.02, 1991 Tex. Gen. Laws 134, 152.

Simply described, "net taxable earned surplus" is determined by (1) adjusting the amount of a corporate taxpayer's reportable federal taxable income to yield "taxable earned surplus," (2) "apportioning" or attributing the taxable earned surplus to Texas; and (3) subtracting various allowable deductions from the apportioned taxable earned surplus. Tex. Tax Code Ann. § 171.110(a) (West Supp.2004). Apportionment, the second step, is at the center of the present dispute.

Under tax code sections 171.106 and 171.110(a)(2), taxable earned surplus is to be "apportioned" to Texas by multiplying it by a fraction, the numerator of which is the corporation's "gross receipts from business done in this state," as determined under section 171.1032, tax code, and the denominator of which is the corporation's "gross receipts from its entire business," as determined under section 171.1051. Id. §§ 171.106(b), 171.110(a)(2).^[3] Thus, the larger a corporation's "gross receipts from business done in this state," the larger the apportionment factor, and the larger percentage of its taxable earned surplus is subject to the franchise tax.

"Gross receipts from business done in this state," in turn, is comprised of the corporation's receipts from several enumerated categories of transactions occurring in Texas, plus "other business done in this state." Id. § 171.1032. Similarly, "gross receipts from ... entire business" includes a corporation's receipts from several enumerated categories of transactions occurring either in Texas or elsewhere, including "other business." Id. § 171.1051. Earnings from intangibles, such as the investment earnings at issue here, are considered to be "other business done in this state" or "other business," depending on whether the earnings are deemed to be from Texas or elsewhere. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172, 173 (Tex.1967). To determine the geographic origin of such earnings, Texas courts have long applied the "location of the payor" rule: "the domicile of the debtor or payor in the case of interest and the declaring corporation in the case of dividends is regarded as the location of the business receipt without regard to the domicile of the payee." Id. at 175; Bullock, 584 S.W.2d at 270 ("To determine what receipts from intangibles should be allocated to business done in this state, Texas employs the location of payor test."); see also 34 Tex. Admin. Code § 3.557(e)(13)(B)-(E) (West 1992).

Furthermore, Section 171.1121, tax code, defines "gross receipts for taxable earned surplus." As contrasted with sections 171.1032 and 171.1051, which identify the business transactions from which "gross receipts from business done in this state" and "gross receipts from ... entire business," respectively, are derived, section 171.1121 sets forth the accounting principles governing how these two categories of "gross receipts" are to be calculated. "Gross receipts" include all revenues reportable by a corporation on its federal tax return, without certain deductions, but not including revenues that are not included in taxable earned surplus. Tex. Tax Code Ann. § 171.1121(a) (West 2002). Subsection (b) of section 171.1121 provides that "a corporation shall use the same accounting methods to apportion taxable earned surplus as used in computing reportable federal taxable income." Id. § 171.1121(b). Subsection (c) prohibits consolidated reporting, requiring corporations to report only their own gross receipts, and subsection (d) restricts the ability of corporations to change their accounting methods used to calculate gross receipts. Id. § 171.1121(c) & (d). Additional provisions address the accounting treatment of a corporation's shares of a partnership's gross receipts. Id. § 171.1121(e) & (f).

The present controversy

This case arises from Anderson-Clayton's franchise tax treatment of investment earnings on its prepaid funeral benefits trusts during the 1993-96 tax years. Throughout this period, Anderson-Clayton deposited proceeds from its sale of prepaid funeral benefits contracts into Texas trusts, in accordance with Texas Finance Code section 154.253(a)(3), and these trusts, in turn, invested those funds in accordance with Texas Finance Code section 154.258 and accumulated investment earnings. It is undisputed that, at all relevant times, the investment earnings on Anderson-Clayton's prepaid funeral benefits trusts came from out-of-state corporations.

During the period in dispute, Anderson-Clayton took the position that the out-of-state corporations, and not the Texas trusts, were the relevant payors, making the earnings out-of-state receipts and not those from "other business done in this state." Anderson-Clayton apparently based this understanding on the federal income tax treatment of the investment earnings. The parties do not dispute that, under federal income tax law, the investment earnings from Anderson-Clayton's prepaid funeral benefits trusts were properly reportable as income of Anderson-Clayton, as opposed to the trust into which the earnings were paid. In other words, the trusts were simply disregarded and the investment earnings treated as if they flowed directly from the out-of-state investment vehicles to Anderson-Clayton.^[4]

In 1997, the Comptroller audited Anderson-Clayton for franchise tax compliance. The Comptroller determined that the investment earnings should instead have been treated as Texas receipts, resulting in an additional total franchise tax liability for Anderson-Clayton of $420,077.07 for the 1993-96 tax years. The record indicates that the Comptroller may have reached this determination by erroneously applying the rule governing taxation of taxable capital, not taxable earned surplus. Compare 34 Tex. Admin. Code § 3.549 (West 1992), with 34 Tex. Admin Code § 3.557 (West 1992). The Comptroller's rule dealing with taxable capital explicitly provides that income earned from trusts accounts located in Texas "are apportioned to the legal domicile of the trust." 34 Tex. Admin. Code § 3.549(e)(47). The companion rule concerning earned-surplus income in effect during the relevant time period does not contain a similar provision. Id. § 3.557.^[5] Nonetheless, Anderson-Clayton appears to concede that such an error was immaterial if the Comptroller ultimately reached the correct result in assessing the tax.

After exhausting administrative remedies, Anderson-Clayton paid the taxes under protest and filed a taxpayer suit in Travis County district court to recover what was by then a total of $515,074.88 in franchise taxes, interest, and penalties paid under protest. The parties filed cross-motions for summary judgment that centered on the sourcing issue. After a hearing, the district court granted the Comptroller's motion and denied Anderson-Clayton's motion in full. This appeal ensued.

DISCUSSION

Standard of review

Because the propriety of a summary judgment is a question of law, we review the trial court's decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Texas Dep't of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex.App.-Austin 1999, no pet.). The parties agree there are no disputes of material fact in this case and that it turns entirely on statutory construction, a question of law. See Texas Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002).

When parties file cross-motions for summary judgment, each party in support of its motion necessarily takes the position that there is no genuine issue of fact in the case and that it is entitled to judgment as a matter of law. Ackermann v. Vordenbaum, 403 S.W.2d 362, 364 (Tex.1966); City of Pflugerville v. Capital Metro. Transp. Auth., 123 S.W.3d 106, 110 (Tex.App.-Austin 2003, pet. denied). Thus, where, as here, both parties file a motion for summary judgment, and one is granted and one is denied, we determine all questions presented and render such judgment as the trial court should have rendered. See Commissioners Court v. Agan, 940 S.W.2d 77, 80 (Tex.1997).

The parties' arguments

The parties' arguments center on the construction of section 171.1121 of the tax code, the provisions setting forth the accounting principles under which "gross receipts from business done in this state" and "gross receipts from ... entire business" are determined. It provides, in full:

§ 171.1121. GROSS RECEIPTS FOR TAXABLE EARNED SURPLUS.

(a) For purposes of this section, "gross receipts" means all revenues reportable by a corporation on its federal tax return, without deduction for the cost of property sold, materials used, labor performed, or other costs incurred, unless otherwise specifically provided in this chapter. "Gross receipts" does not include revenues that are not included in taxable earned surplus. For example, Schedule C special deductions and any amounts subtracted from reportable federal taxable income under Section 171.110(a)(1) are not included in taxable earned surplus and therefore are not considered gross receipts.

(b) Except as otherwise provided by this section, a corporation shall use the same accounting methods to apportion taxable earned surplus as used in computing reportable federal taxable income.

(c) A corporation shall report its gross receipts based solely on its own financial condition. Consolidated reporting is prohibited.

(d) Unless the provisions of Section 171.111 apply due to an election under that section, a corporation may not change its accounting methods used to calculate gross receipts more often than once every four years without the express written consent of the comptroller. A change in accounting methods is not justified solely because it results in a reduction of tax liability.

(e) A corporation's share of a partnership's gross receipts that is included in the corporation's federal taxable income must be used in computing the corporation's gross receipts under this section. Unless otherwise provided by this chapter, a corporation may not deduct costs incurred from the corporation's share of a partnership's gross receipts. The gross receipts must be apportioned as though the corporation directly earned them.

Tex. Tax Code Ann. § 171.112(a)-(c) (West 2002). The parties' dispute centers on the proper interpretation of subsection (b).

Anderson-Clayton urges that subsection (b)'s requirement that it use the same "accounting method" to "apportion" taxable earned surplus as it uses in computing its federal taxable income means that it should disregard the trusts, as it does when computing federal taxable income, when "sourcing" the trust's investment earnings to either the numerator of the apportionment formula ("gross receipts from business done in this state," as determined under section 171.1032) or the denominator ("gross receipts from its entire business," as determined under section 171.1051). Id. §§ 171.1032, .1051, .106(b), .110(a)(2). Thus, Anderson-Clayton reasons, it should treat the investment earnings as direct payments from the out-of-state investment vehicles to it, and, accordingly, not include those earnings in "gross receipts from business done in this state."

The Comptroller's position regarding subsection (b) has continued to evolve during this appeal.^[6] The Comptroller presently argues that subsection (b) is not intended to address sourcing of receipts under Sections 171.106, 171.1032 and 171.1051, but only when gross receipts and related earned surplus income are recognized. The Comptroller asserts that there are several appropriate methods of accounting that a company could use to determine its reportable federal income. Some of these methods allow income and expenses to be deferred such as by use of installment, percentage-of-completion, or completed-contract accounting. The Comptroller urges that subsection (b) merely requires taxpayers to use the same method of accounting they use to compute federal reportable taxable income to determine when to recognize earned surplus for franchise tax purposes. The question of where or from whom the investment earnings are deemed to emanate, the Comptroller maintains, is instead determined by Texas tax and trust law, which considers trusts to be separate entities.

Section 171.1121(b)

Statutory construction principles

When construing a Texas statute, our paramount task is to ascertain the Texas Legislature's intent in enacting that provision. We first look to the plain and common meaning of the words the legislature used. Tex. Gov't Code Ann. § 311.011 (West 1998); Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex.2000); Texas Workers' Comp. Comm'n v. Texas Builders Ins. Co., 994 S.W.2d 902, 908 (Tex.App.-Austin 1999, pet. denied). We are to presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect. Cities of Austin, Dallas, Ft. Worth and Hereford v. Southwestern Bell Telephone Co., 92 S.W.3d 434, 442 (Tex.2002); see State v. Evangelical Lutheran Good Samaritan Soc'y, 981 S.W.2d 509, 511 (Tex.App.-Austin 1998, no pet.). Unless a statute is ambiguous, we abide by the clear language of the statute and enforce it as written. RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985).

Also, the legislature has prescribed that "[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." Tex. Gov't Code Ann. § 311.011(b) (West 1998) (Code Construction Act). The Code Construction Act also requires us to consider, among other things, statutory provisions on the same or similar subjects. Id. § 312.008 (West 1998). And, "[w]hen the same or a similar term is used in the same connection in different statutes, the term will be given the same meaning in one as in the other, unless there is something to indicate that a different meaning was intended." Guthery v. Taylor, 112 S.W.3d 715, 722 (Tex.App.-Houston [14th Dist.] 2003, no pet.).

Finally, while the term "apportion" in section 171.1121(b) is critical, we are not to view this term in isolation, but in context with the Texas franchise tax law as a whole. Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex.1999); Thomas v. Cornyn, 71 S.W.3d 473, 481 (Tex.App.-Austin 2002, no pet.). Additionally, the Code Construction Act authorizes us to consider the "object sought to be attained" by the legislature when enacting the provision. Tex. Gov't Code Ann. § 311.023 (West 1998); see also In re Bell, 91 S.W.3d 784, 787 (Tex.2002) ("[The Act] makes clear that courts may consider the "legislative history" and the "object sought to be attained" in construing statutes.").

Application

Applying these principles of statutory construction convinces us that the legislature did not intend section 171.1121(b) to govern the sourcing of gross receipts to either "gross receipts from business done in this state" or "gross receipts from its entire business" in the earned surplus apportionment factor. Tex. Tax Code Ann. §§ 171.1032, .1051, .106(b), .110(a)(2).

Although the parties have focused almost exclusively on the meaning of "apportion" in section 171.1121(b), that provision in fact contains two terms that are decisive in our analysis: corporations must "use the same accounting methods to apportion taxable earned surplus as used in computing reportable federal taxable income." We turn first to "accounting methods."

Because both earned surplus, the tax base, and the "gross receipts" used in apportioning it are derived from federal taxable income, the meaning of "accounting method" in the Internal Revenue Code is especially instructive in our construction of section 171.1121(b). The Code Construction Act requires us to consider, among other things, statutory provisions on the same or similar subjects. Tex. Gov't Code Ann. § 312.008 (West 1998). In its "General rule for methods of accounting" in the Internal Revenue Code, Congress listed several "permissible methods," including cash and accrual methods. 26 U.S.C.A. § 446(c). Under cash accounting, income is recognized only upon the actual receipt of cash, property or services. By contrast, under accrual methods of accounting, income is recognized when all of the events occur that fix the right to receive income and determine its amount with reasonable accuracy. 26 U.S.C.A § 446(c) (West 2002); 26 C.F.R. 1.446-1(c)(ii); Tax Management Portfolio, Accounting Methods — General Principles, No. 570 T.M. (2003), at A-24.^[7] Numerous variants on accrual methods can be used, including the installment method (a method of assigning to particular tax years income from the sale of property for which payment is made over time)^[8] and the percentage of completion method (a method of allocating costs and income from the performance of long-term contracts to particular taxable years).^[9]

As these example illustrate, "accounting methods" as contemplated in the franchise tax statute relate primarily to the timing of revenue and income recognition. The linchpin of Anderson-Clayton's argument-that a grantor trust is treated as a flow-through for federal income tax recognition purposes-is instead a matter of substantive federal tax law governing whether tax liability is imposed on the trust or the grantor. Anderson-Clayton thus errs in extrapolating from this "accounting method" a Texas sourcing methodology.

Nor does the term "apportion" as used in section 171.1121(b) suggest anything about sourcing. The legislature gave "apportion" a technical definition that we must apply in lieu of the more general meaning on which the dissent relies. Ante at 173-74; see Tex. Govt.Code § 311.011(b). "Apportion" refers to the processes outlined in section 171.106. As detailed previously, section 171.106 provides that "taxable earned surplus" (as defined in section 171.110(a)) is "apportioned" to Texas by multiplying it by the fraction of "gross receipts from business done in this state" (as determined under section 171.1032) divided by "gross receipts from its entire business" (as determined under section 171.1051). Id. §§ 171.1032, .1051, .106(b), .110(a)(2). None of these provisions speak to how receipts are initially categorized as either "gross receipts from business done in this state" or "gross receipts from ... entire business." The legislature appears to have left that preliminary inquiry to other law.

Section 171.1121(b). Merely requires corporations to apply the same accounting method (e.g., the installment method, the percentage of completion method) when calculating both reportable federal taxable income and the "gross receipts" it uses in the apportionment factor of section 171.106. The legislature's evident intent in doing so stems from the fact that both "gross receipts" used in the earned surplus apportionment factor and the taxable earned surplus that is being apportioned are derived from items reportable on the corporation's federal income tax return. Id. §§ 171.110(a), .1121(a). Taxable earned surplus is determined by:

determining the corporation's reportable federal taxable income, subtracting from that amount any amount excludable under Subsection (k), any amount included in reportable federal taxable income under Section 78 or Sections 951-964, Internal Revenue Code, and dividends received from a subsidiary, associate, or affiliated corporation that does not transact a substantial portion of its business or regularly maintain a substantial portion of its assets in the United States, and adding to that amount any compensation of officers or directors, or if a bank, any compensation of directors and executive officers, to the extent excluded in determining federal taxable income to determine the corporation's taxable earned surplus;

Id. § 171.110(a) (emphasis added). "Gross receipts" used in the earned surplus apportionment factor:

means all revenues reportable by a corporation on its federal tax return, without deduction for the cost of property sold, materials used, labor performed, or other costs incurred, unless otherwise specifically provided in this chapter. "Gross receipts" does not include revenues that are not included in taxable earned surplus. For example, Schedule C special deductions and any amounts subtracted from reportable federal taxable income under Section 171.110(a)(1) are not included in taxable earned surplus and therefore are not considered gross receipts.

Id. § 171.1121(a) (emphasis added). As noted previously, a corporation may choose among several potential accounting methods when calculating its federal taxable revenues and income. If a corporation used inconsistent accounting methods to calculate "reportable federal taxable income" (the foundation of taxable earned surplus) and the "revenues reportable by a corporation on its federal income tax return" (used in calculating "gross receipts" for apportionment), it could conceivably recognize revenues and income for the current tax year in calculating one of these figures, yet recognize the same revenue and income in a different tax year when calculating the other figure. The result would be that the corporation would recognize revenues and income for taxable earned surplus purposes that is not also reflected in the apportionment factor, or vice versa. Either inconsistency would skew the apportionment process. If, for example, Texas receipts were reflected in taxable earned surplus for a particular tax year but not also in the corresponding apportionment factor, earned surplus would be disproportionately under-apportioned to Texas. Conversely, if Texas receipts are recognized in the apportionment factor but not in the taxable earned surplus being apportioned for that tax year, taxable earned surplus (not including those unrecognized receipts) would be disproportionately over-apportioned to Texas.

The dissent suggests that this reading of section 171.1121(b) renders that provision redundant and unnecessary, as section 171.1121(a) already defines "gross revenues" used in the earned surplus apportionment factor as "all revenues reportable by a corporation on its federal income tax return" and "does not include revenues that are not included in taxable earned surplus." Southwestern Bell Telephone, 92 S.W.3d at 442 ("we will presume that the Legislature used every word of a statute for a purpose"). We disagree that section 171.1121(a) forecloses the possibility that a corporation could use inconsistent accounting methods to calculate "revenues reportable ... on its federal tax return" for use in apportionment under section 171.1121(a) and another to compute its "reportable federal taxable income" in determining taxable earned surplus under section 171.110(a)(1). Because a corporation may choose among several accounting methods when calculating reportable revenues and income on its federal income tax return, the statutory references to "revenues reportable ... on its federal income tax return" and "reportable federal taxable income" do not alone preclude such inconsistent treatment.

We also find it instructive that, in 1995, the legislature added a provision parallel to section 171.1121(b) to the provisions governing assessment of franchise tax on the alternative tax base of taxable capital. Acts 1995, 74th Leg., R.S., ch. 1002, § 13, codified at Tex. Tax.Code Ann § 171.112(h). The methods for assessing the franchise tax on taxable capital are largely parallel to those regarding taxable earned surplus. Both taxable earned surplus and taxable capital are apportioned to Texas based on a factor of "gross receipts from business done in this state" divided by "gross receipts from its entire business." Id. §§ 171.106(a) & (b). The receipts to be included in each apportionment factor derive from virtually identical lists of business activities. Compare id. §§ 171.103 & .105, with id. §§ 171.1032 & .1051. However, gross receipts used in apportioning taxable capital are calculated differently than gross receipts used in apportioning taxable earned surplus. "Gross receipts" used in apportioning taxable capital generally "means all revenues that would be recognized annually under a generally accepted accounting principles method of accounting," absent certain deductions. Id. § 171.112(a) & (b).^[10] This corresponds to the manner in which taxable capital, the corresponding tax base, is calculated: under generally accepted accounting principles. Id. §§ 171.101, 171.109(b); Tex. Bus. Corp. Act Ann. art. 1.02(27). This linkage of the taxable capital tax base and its apportionment factor via generally accepted accounting principles is parallel to the linkage, through revenues and income reportable for federal income tax purposes, of taxable earned surplus and its apportionment factor.^[11]

Prior to 1995, the provisions governing calculation of the taxable capital apportionment factor did not contain a provision similar to section 171.1121(b). Even before the amendment, both taxable capital and the gross revenues used in its apportionment factor were to be calculated based on generally accepted accounting principles. But merely specifying that a corporation must use a generally accepted accounting method to calculate each of these figures did not necessarily require the corporation to use the same method as to both, at least as the legislature viewed the statute. It added the requirement that "a corporation shall use the same accounting methods to apportion its taxable capital as it used to compute its taxable capital." Acts 1995, 74th Leg., R.S., ch. 1002, § 13, codified at Tex. Tax.Code Ann § 171.112(h). The legislative history reveals that this amendment was intended to ensure the same "`parallel accounting treatment' required for earned surplus." S.B. 644, House Committee Report, Bill Analysis at 1-2.

Although we are not to rely on the enactments of a subsequent legislature as authoritative interpretations of a prior statute, Cash America Intern. Inc. v. Bennett, 35 S.W.3d 12, 20 (Tex.2000), we nonetheless find the 1995 amendments helpful in our interpretation of section 171.1121(b). At a minimum, they illustrate that the franchise tax statute would be at least unclear as to whether it would require "parallel accounting treatment" — the use of the same accounting method to calculate both the tax base and its apportionment factor — absent the language appearing in section 171.1121(b) and the 1995 amendment to the taxable capital provisions. Against that backdrop, we would not construe section 171.1121(b) as merely redundant of section 171.1121(a). Southwestern Bell Telephone, 92 S.W.3d at 442.

Because section 171.1121(b) is silent regarding the sourcing of receipts, we must look to other law to determine whether the income derived from the trusts should be considered a Texas receipt.

Other law

Before we turn to other law potentially governing the sourcing of the receipts at issue in this case, it is helpful to first consider the broader concepts underlying tax apportionment. Because the franchise tax is imposed on corporations for what is seen as a privilege bestowed upon them by doing business here, "the formula employed to compute a corporation's franchise tax is designed to achieve a tax commensurate with the value of the privilege granted" — a formula that taxes only business done in this state. See Tex. Tax Code Ann. § 171.001(a)(1); Bullock, 584 S.W.2d at 270. For many items, such as tangible items of commerce, what is considered to be business done in Texas is fairly clear — if the corporation received income from a sale of a product in Texas, it is a Texas receipt. However, for intangible sources of income, the sourcing of income as a Texas receipt was once unclear. For instance, would income from dividends earned through investments with a foreign corporation be considered a Texas receipt? The Comptroller answered the "intangible sourcing" question by adopting the "location of payor" rule as its sourcing method. See Humble Oil, 414 S.W.2d at 173. Because the underlying justification of the franchise tax is predicated on taxing only benefits received by doing business in Texas, the Comptroller decided that the location of the payor of the intangible income would determine whether the income was derived from business in Texas and thus whether the income could be taxed.

Ultimately, we must determine whether the income derived from the trusts is properly considered "other business done in this state" in light of the "location of payor" rule-in other words whether the trust is the payor. Tex. Tax Code Ann. § 171.1032; Humble Oil, 414 S.W.2d at 173. We are mindful that construction of a statute by an administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute. Dodd v. Meno, 870 S.W.2d 4, 7 (Tex.1994) (deferring to Commissioner of Education's decision that school nurse was not "teacher" under education code; Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.1993); Stanford v. Butler, 181 S.W.2d 269, 273 (Tex.1944). If the agency's interpretation is consistent with the language and the purposes of the statute, the court will accept it, even if other reasonable interpretations exist. See Gene Hamon Ford, Inc. v. David McDavid Nissan, Inc., 997 S.W.2d 298, 305 (Tex.App.-Austin 1999, pet. denied). In other words, because the Comptroller has determined that taxing income derived from trusts located in Texas is an appropriate interpretation of its power to tax "other business done in this state," we will defer to the Comptroller's conclusion if it is reasonable. Tex. Tax Code Ann. § 171.1032.

Under longstanding Texas law, trusts are considered separate entities, even where they may not be subject to federal income tax or the franchise tax. See Tex. Prop.Code Ann. ch. 112 (West 1995 & Supp.2004). Because it is ultimately the trusts, separate and distinct entities, that pay income to the funeral homes earned from their investments, we conclude that the comptroller's determination that the trusts are the payors is reasonable. Because it is undisputed that the trusts are domiciled in Texas, we determine that, according to the location of payor rule, the investment income derived from the trusts are Texas receipts. We also observe that sourcing the receipts to the Texas trusts is consistent with the broader policies underlying tax apportionment. By establishing a Texas trust to hold and invest revenues from its sale of prepaid funeral benefit plans, Anderson-Clayton availed itself of the benefits and protections of Texas law. The Comptroller's attempt to apportion franchise taxes commensurate with these privileges and benefits is reasonable, persuasive, and consistent with the language and the purposes of the statute. See Bullock, 584 S.W.2d at 270.

CONCLUSION

We hold that the district court did not err in granting summary judgment to the Comptroller and in denying Anderson-Clayton's summary judgment motion. We affirm the district court's summary judgment.

Dissenting Opinion by Justice PURYEAR.

DAVID PURYEAR, Justice, dissenting.

The issue we are presented with in this controversy is, as the majority acknowledges, whether "earnings from out-of-state investments made by Texas prepaid funeral benefits trusts," owned by Texas funeral homes, are out-of-state receipts for franchise tax apportionment purposes. Anderson-Clayton Bros. Funeral Home v. Strayhorn, 149 S.W.3d at 168 (Tex.App.-Austin 2004, no pet. h.) (emphasis added). The majority concludes that because it is the trusts that ultimately disburse to the funeral homes any income earned from investments, the Comptroller's determination that the trusts are "payors" is reasonable, and therefore the investment earnings derived from the trusts are Texas receipts. Because I disagree with the majority's characterization of the trusts as "payors" generating income from business done in Texas, I respectfully dissent.

The parties agree that the "location of the payor" rule determines how the investment earnings should be apportioned or sourced and that the fundamental dispute in this case is about who should be considered the "payors" of the investment earnings at issue. The funeral homes contend that the relevant statute, section 171.1121(b) of the tax code, directs the Comptroller to look to the same accounting methods used to report federal income tax in determining how to apportion the investment earnings. And because the trusts are ignored for federal income tax purposes, the trusts should likewise be treated as if they did not exist for apportionment purposes. The trusts, therefore, cannot be the payors, and we must look to the investment companies' locations to determine how the investment earnings should be apportioned.

The Comptroller, on the other hand, argues that section 171.1121(b) essentially provides no guidance for determining the location of the payor. Thus, the Comptroller may use its own methods to determine the location of the payor, and those methods must be affirmed if reasonable. The majority agrees with the Comptroller's argument and holds that the Comptroller's method of determining the location of the payor is a reasonable one. I would hold that not only does section 171.1121(b) indeed direct the Comptroller to use federal income tax accounting methods to determine how to apportion investment earnings, but also that even without resorting to federal accounting methods, the trusts are not "payors" for purposes of the location of the payor rule.

Section 171.1121(b)

The Comptroller argues, and the majority agrees, that section 171 .1121(b) "merely requires corporations to apply the same accounting method (e.g., the installment method, the percentage of completion method) when calculating both reportable federal taxable income and the `gross receipts' it uses in the apportionment factor of section 171.106." Id., op. at 175. This construction, however, is flawed in two respects: (1) it renders subsection (b) of section 171.1121 redundant of subsection (a) of that same statute, and (2) it ignores the meaning of the term "apportion."

The majority maintains that subsection (b) does not address "sourcing of receipts" but rather is intended to clarify that the method used to determine taxable earned surplus should be the same as the one used to determine gross receipts. Id., op. at 175-76. But subsection (a) of the statute already directs taxpayers to do so. It provides that gross receipts mean all revenue reportable by a corporation on its federal tax return. Tex. Tax Code Ann. § 171.1121(a) (West 2002). And taxable earned surplus is determined by adjusting the amount of a corporate taxpayer's reportable federal taxable income. Id. § 171.110(a) (West Supp.2004). Gross receipts do not include revenues not included in taxable earned surplus. Id. § 171.1121(a). In other words, gross receipts must be calculated consistently with taxable earned surplus. This is spelled out in subsection (a), not subsection (b).

Subsection (b), on the other hand, speaks specifically to "apportionment," not to calculating gross receipts consistently with taxable earned surplus. Apportion is defined in the taxation context as "[t]he act of allocating or attributing moneys or expenses in a given way, as when a taxpayer allocates part of profits to a particular tax year or part of the use of a personal asset to a business." Black's Law Dictionary 96-97 (7th ed.1999) (emphasis added). Attribute is defined as "2. to explain as caused or brought about by: regard as occurring in consequence of or on account of; ... 3. to regard as possessed, owned, originated, characterized, or described as indicated...." Webster's Third New International Dictionary 142 (1961). This definition is consistent with the "location of the payor" rule; that is, in order to determine to whom the investment earnings should be attributed and accordingly how they should be apportioned, we should first determine who "caused" or "brought about" those investment earnings. And according to subsection (b) of section 171.1121, we should rely on federal accounting methods to do so.

There is nothing in section 171.1121 or elsewhere in the Franchise Tax Act that supports the Comptroller's contention that the term "apportion" as used in section 171.1121(b) means to calculate gross receipts consistently with taxable earned surplus. In fact, the legislature used "apportion" throughout the Act to refer to the allocation or attribution of receipts to Texas versus elsewhere and to particular entities. See, e.g., Tex. Tax Code Ann. §§ 171.1032, .1051, .106 (West Supp.2004). Even within section 171.1121, the legislature uses "apportion" in subsection (e) to refer to the assignment of a corporation's share of a partnership's gross receipts to that corporation. Id. § 171.1121(e). We should not construe subsection (b) any differently.

Federal Accounting Methods

It is without dispute that funeral trusts are "grantor" trusts.^[1] The Internal Revenue Code requires the grantor or owner of any portion of a grantor trust to include in his taxable income any items of income attributable to his portion of the trust. I.R.C. § 671 (West 2002); Treas. Reg. § 1.671-2 (2003). Because the funeral homes established the trust accounts, they are considered the grantors or settlors of the trusts. Hopkins v. Commissioner of Internal Revenue, 144 F.2d 683, 690 (6th Cir.1944). Thus, they must report as taxable income any income attributable to the portion of the trusts that they own.

Payments deposited into the trust accounts, or the trust "corpus," are refundable; that is, the purchaser of the pre-paid funeral services may revoke the corpus trust. Thus, the funeral homes cannot withdraw any contractual payments from the trusts until after the purchaser dies, the funeral service is completed, and certain required forms are presented to the depositary. Accordingly, the funeral homes do not recognize any payments deposited in the trust accounts as taxable income until after the purchaser has died and the funeral services have been provided. These contractual payments, however, yield "earnings" once they have been invested in marketable securities by the trusts. Earnings are "the amount in an account in excess of the amount paid by the purchaser of a prepaid funeral benefits contract that is deposited in the account ... including accrued interest, accrued income, and enhanced or increased value." Tex. Fin.Code Ann. § 154.002(4) (West Supp.2004). These earnings are non-refundable and thus irrevocable by the purchaser; even if the purchaser revokes the funeral services agreement, he may recover the amounts paid under the contract, but not the earnings or enhanced value of those payments. The funeral homes are therefore treated as the grantors or owners of the trusts and recognize the earnings as taxable income on an annual basis. This is so even though the funeral homes typically may not withdraw those earnings from the trust accounts until after the funeral services are delivered or the corpus is returned.

Income received by a grantor trust is treated as if it had been received directly by the grantor or owner. The funeral homes, for example, must treat investment earnings on the trust corpus as though they received the earnings directly from the corporations that pay them into the trust accounts, regardless of when the funeral homes actually withdraw the earnings from those trust accounts. In other words, income earned on investments held in a grantor trust is treated as "flowing through" the trust as if the trust did not exist. If we apply this federal accounting method, as section 171.1121(b) of the tax code requires us to do, the result is that the grantor trust must be treated as a "flow-through" entity rather than as a payor of investment proceeds. The trusts never own the investment proceeds; rather the earnings pass directly from the paying corporations to the owner or grantor of the trust, in this case the funeral homes. Thus, those corporations are the "payors" for purposes of the location of the payor rule, not the flow-through trusts, and we should look to the location of those paying corporations to determine how to apportion the earnings, instead of looking to the location of the trusts.

Business in Texas

Even if I were to agree that the tax code does not require the Comptroller to apply the federal method of treating grantor trusts as flow-through trusts rather than as payors, as the majority holds, I would still hold that the trusts in this case cannot be characterized as the payors for purposes of the location of the payor rule. The trusts do not generate the investment earnings. Nor do they have any discretion as to how much of those earnings are to be paid to the trust grantors or when those earnings should be paid. Thus, I would hold that the trusts are not payors and the investment earnings are not a result of business done in this state.

Finally, to the extent there is any doubt concerning the construction of section 171.1121(b), I would hold that the provision is ambiguous and apply the rule that courts strictly construe the applicability of taxation against the taxing authority and in the taxpayer's favor. See Calvert v. Texas Pipe Line Co., 517 S.W.2d 777, 781 (Tex.1974); Texas Utils. Elec. Co. v. Sharp, 962 S.W.2d 723, 726 n. 4 (Tex.App.-Austin 1998, pet. denied).

In sum, I would hold that the trusts are not payors for the purposes of the location of the payor rule. Thus, I would look to the location of the paying corporations to determine if investment earnings should be apportioned as receipts from business done in this state. Accordingly, I would sustain the funeral homes' issue and reverse the district court's judgment.

NOTES

[1] Tex. Fin.Code Ann. § 154.001(c) (West 1998); see Acts 1955, 54th Leg., R.S. ch. 512, § 13, 1955 Tex. Gen. Laws 1292, 1295.

[2] As discussed below, this case involves the 1993-96 tax years. At that time, the relevant statutory provisions governing prepaid funeral services were in Article 548b, Texas Revised Civil Statutes. Effective 1997, these provisions were recodified into the Texas Finance Code. Act of May 22, 1997, 75th Leg., R.S., ch. 1008, § 1, 1997 Tex. Gen. Laws 3091, 3385. Because neither party suggests there are any substantive differences between the two versions for purposes of this litigation, we will cite to the finance code for ease of reference.

[3] Subsection (c) of section 171.106 provides a similar formula that is specifically addressed to taxable earned surplus from the sale of management, distribution or administrative services to or on behalf of a regulated investment company. Tex. Tax Code Ann. § 171.106(c) (West Supp.2004).

[4] Anderson-Clayton apparently reported the investment earnings annually on its federal income tax returns and, accordingly, also recognized them in calculating its franchise taxes. See Tex. Tax Code Ann. §§ 171.106(b) (gross receipts from entire business included in denominator), .110(a) (net taxable earned surplus based on federal taxable income). By contrast, it did not recognize as income the original payments made by customers to purchase prepaid funeral benefits contracts until after the contract was either cancelled or performed and Anderson-Clayton actually withdrew the funds from the account. See Tex. Fin.Code Ann. §§ 154.254,.262 (funds must remain in trust accounts until contract is cancelled or beneficiary dies). It recognized the payments for franchise tax purposes at the same time. And, because Anderson-Clayton received the contract payments for services it provided in Texas, it sourced those payments to Texas. Tex. Tax Code Ann. § 171.1032(a)(2).

[5] The Comptroller has since redrafted the rule concerning earned-surplus income to apportion earnings from trust accounts to the legal domicile of the trust. See 28 Tex. Reg 1218 (2002) (codified at 34 Tex. Admin. Code § 3.557 (West 2003)). We do not address the amended rule.

[6] In her initial brief, the Comptroller concluded that subsection (b) did not direct the use of federal income tax rules to determine where the payor is but rather what portion of earned-surplus income may be taxed. During oral argument, however, the Comptroller shifted focus to urge this Court to read subsection (b) of section 171.1121 together with (c), which prohibits consolidated reporting, to manifest a broader intent to apportion income to each entity and not treat them as flow-throughs. Subsequently, the Comptroller conceded in a post-submission brief that "[c]onsolidated reporting is not at issue here."

[7] Although the comptroller states in her brief that corporations like Anderson-Clayton cannot use cash accounting to compute federal reportable taxable income, the code's reference to cash accounting is nonetheless illustrative of the nature of "accounting methods."

[8] 26 U.S.C.A. § 453(c) (West 2002).

[9] Id. § 460(b) (West 2002).

[10] Where generally accepted accounting principles are unsettled or not sufficiently specific regarding a practice, the Comptroller is authorized to establish rules to govern the practice. Tex. Tax Code Ann. § 171.112(b) (West 1998). Also, corporations whose taxable capital is less than $1 million may report its gross receipts according to the method used on its most recent federal income tax return due before its franchise tax return is due. Id. § 171.112(c).

[11] As the Comptroller explained, in commentary just before the effective date of the 1991 amendments to the franchise tax statute authorizing the taxation of earned surplus, "There must be a link between the element that is being apportioned (taxable capital, earned surplus) and the formula used to apportion it. To do otherwise could lead to inequitable results." Tex. Comp. Pub. Acc'ts, Letter No. 9112L1265B01 (Dec. 4, 1991).

[1] Grantor trusts are trusts that are treated as if they are owned all or in part by their grantors or by other persons deemed to be owners. I.R.C. § 671 (West 2002); Treas. Reg. § 1.671-2 (2003).