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                                          June 10, 1955


        Hon. A. M. Muldrow                      Opinion No.    S-15.9
        Secretary of State
        Capitol station                         Re:   Deadline for payment of.
        Austin. Texas                                 franchise taxes when May
                                                      1st falls on Sunday.
        Dear Mr.     Muldrow:

                   YOU submit for the opinion of thts office two questions based
        upon the facts disclosed by your letter’ which is, in part, as follows:

                   *Article     7084. V.C.S.   of Texas, provides,      in part,
               as follows:

                       ‘Except as herein provided, every domestic and
                      foreign corporathin heretofore or hereafter
                      chartered or authorized to do,business in Texas,
                      or doing business in Texas,~ shall, on or before
                      May first of each year, pay in advance. to the
                      Secretary of State a franchise tax for the year
                      following, . . *’

                      UArt$cle 709 1.~V.C.S.   of Texas,   provides, in part!
                   as follows:

                      ‘Any corporation, either domestic or foreign
                      which shall fail to pay any franchise tax pro-
                      vided for in this Chapter when the same shall
                      become due and payable under the provl.sions
                      of this Chapter, shall thereup6n become liable
                      to a penalty of twenty-five per cent (25%) of tb.e
                      amount of such franchise tax due by such tory
                      poration.   . . .*

                   “May 1, 1955 fell on Sunday. . . . In all cases,
               we have assessed the’25% penalty where the envelope
               in which remittances were received bore a postmark
               afterMay l...   . .

                      *Since money is involved, and in some cases a
                   considerable amount, we are asking for an official
                   ruling on the following questions:
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            Hon. A. M; Muldrow, Page 2 (Opinion NO. S-159)



                       “1. In a year when May 1 falls on Sunday, can the
                    Secretary af Statesaccept payment without penalty kl
                    those cases where the envelope in which remittances
                    are mailed bear a postmark of May 21

                         ‘2. If a taxpayer brings his payment to the office
                     on,Monday, May 2;can the Secretary of State accept
                    .+he payment without penalty upon the theory @at the
                     offi& was closed on Sunday? *

                       Our answer to both your questions is In the negative.

                      In the absence of some exception to the general language of
          Article 7084, Vernon’s Civil Statutes, - and there is none - a franchise
        ~.’
          tax pay&nt’.made on Monday, May Znd, foliov.+lng a Sunday,w&lch is
          May. 1st -1s not timely paid ~0 as to relieve .the taxpayer of the penalty
          imposed for a delinquent payment. The statute provides’ that the ‘pay-
          ment is t0 be .made “on or before May 1st of each year*, and a payment
          tiade on May 2nd. regardless of the fact that May Itit was a S~unday,~
          would be a. delinquent payment and subject to the penalties, imposed .by,
          tba statute as lt~would not be on.01 before .&lay 1st. A paymeqt ma+ ko.
          the Secretary of State on May 1st: even t&btigh it be Sunday, wo+      be..+
       .~.timely payment.
       .~
                      The case of Nunji et al’v. New,et al, 148 Tex;44,3, & S.W.
        .~Zd 116 (i950), is inspoint. The Supreme Court in,thls case St&es the
         .law’as follows:

                      ~’*The r&e hai long been firmly established :g &is:
                    State that where a statute requires that an a& ‘be. d&e.
                    wi&in.a specified. time, such as that speeifled~ here, &,e
                    last ‘day will not be ex‘cluded and the lea&h ofUime there-.
                    by extended when tbat~day falls .on ti legal holiday or
                    G&d&y., unless the statute so provides. Burr v. Lewis,
                    6 Tex. 76~ Hanover afire Insurance’ Co:v. Shrader and
                   .Rogers, 89 Tex. 35.~33 S., W. 112. 32 S. W. 872, ,30 L.R.A.
                    49~8,59.Am. St; Rep. 25~ ,Fldellty & CaS&lty Co. ~ofNew
                   .York:$ Mlllican, Tex. Clv. App., 11.5 S.W. Zd 464, kiror
                    refusedi   . . .”

                      ArtlcIe .7084 contains no provision~for extend&g the ‘&l&e for
        .~,thepayment of franchise taxes when @e l+st day for such paym&nt.,is a
       .~:~&gal hollday~ or Sunday.

                         The p&&y   prtilslons of the franchise tax statute appear to
            be rather +rsh,: however the matter has’been’ called, to the .a@+ion   of
            ,+.helegislature by s&&al secretaries of s&te..and the $gtiJatMe has
            not seen fit to’cbange these requirements.
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     Hon. A. M. Muldrow. Page ,3 (Opinion No. S-159)



                                   SUMMARY

                 In cases where May 1st falls on Sunday and the envelope in
     which remittances are mailed to, the Secretary of State bears a post-
     mark of May 2nd or in cases where the taxpayer bringe.his papment to
     the office of’the Secretary of State on Monday, May Znd, following Sun-
     day, May let, the penalty for delinquent payments as provided in
     Article ~7084,. V; C, S., would apply.

                                         Yours very truly,

     APPROVED:                           JOHN BEN SHEPPERD
                                         Attorney General
     John Atchison
     Reviewer

     J..A. Amis,‘Jr.
     Reviewer
                                               Assistant
     Robert S. Trotti
     First Assistant

     John Ben Sbepperd
     Attorney General

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