           T~EA~ORNEY                  GENERAL
                        OF%%XAS



                           June 5, 1961


Honorable Robert S. Calvert
Comptroller of Public Accounts
Capitol Station
Austin, Texas
                                 Opinion No. WW-1073
                                 Re:   Taxability for inheritance
                                       tax purposes of bequests
                                       to be expended by the
                                       Foreign Mission Board of
                                       Southern Baptist Convention
                                       of Richmond, Virginia, for
                                       the support of foreign
Dear Mr. Calvert:                      missions.
     We quote the following excerpt from your letter requesting
the opinion of this office on the above captioned matter:
          "J. W. Kimbrough died testate a resident of
     Dallas County on April 28, 1959. Paragraph 4, Section
     B, of the decedent's will reads as follows:
         11(B. One-third thereof shall be given to the
    Baptist Foundation of Texas as an endowment fund to be
    known as the J. W. and Utie Kimbrough Memorial Fund,
    the net income therefrom to be paid annually, or at
    such shorter intervals as may be deemed expedient by
    the said Baptist Foundation of Texas, to the Foreign
    Mission Board of the Southern Baptist Convention,
    Richmond, Virginia, for the support of foreign
    missions.'
         "The tax on the above bequest was assessed by
    this Department on August 25, 1960, in the amount of
    $1,573.17,and at the end of the ninety-day period
    for paying the tax before a penalty accrues, the
    attorneys for the estate remitted all the tax assessed
    against this estate except the above sum assessed
    against the Foreign Mission Board of the Southern
    Baptist Convention and furnished us with a commitment
    wherein the Foreign Mission Board irrevocably commit-
    ted this bequest for use exclusively in the State of
    Texas.
Honorable Robert S. Calvert, page 2 (WW-1073)



         "It appears to us that the Foreign Mission
    Board has violated the terms of the will when
    making this commitment, for the will specifically
    states that the bequest is for the support of
    foreign missions. Furthermore, the Foreign Mis-
    sion Board waited until the assessment was made
    before they took any action to commit the funds
    for use in the State of Texas.
          "In view of the above, please advise whether
     or not this bequest is exempt or taxable as pro-
     vided in Article 14.06.11
     Article 14.06, Taxation General, is a re-codification of
Article 7lZ, Vernon’s Civil Statutes. The pertinent parts of
Article 7122, which was in effect at the date of the death of
the decedent in this case, read as follows:
          "If passing to or for the use of the United
     States, to or for the use of any other person or
     religious, educational or charitable organization
     or institution, or to any other person, corpora-
     tion or association not included in any of the
     classes mentioned in the preceding portions of the
     original Act known as Chapter 29 of the General
     Laws of the Second Called Session of the 38th
     Legislature, the tax shall be:
          ,t. . . .

          "Provided, however, that this Article shall
     not apply on property passing to or for the use
     of the United States, or to or for the use of
     any religious, educational or charitable organi-
     zation, incorporated, unincorporated or in the
     form of a trust, when such bequest, devise or
     gift is to be used within this State. The exemption
     from the tax under the preceding provisions of this
     Article shall, without limiting its application
     under other appropriate circumstances, apply to all
     or so much of any bequest, devise or gift to or for
     the use of the United States, or a religious, edu-
     cational or charitable organization, which is, in
     writing and prior to the payment of the tax, irre-
     vocably committed for use exclusively within the
     State of Texas or transferred to a religious,
     educational or charitable organization for use
     exclusively within this State."
Honorable Robert S. Calvert, page 3 (WW,lO73)



      The fact that the Foreign Mission Board of the Southern
Baptist Convention did not commit the bequest for use exclu-
sively in Texas until after the tax was assessed is immate-
rial, as the statute quoted above only requires the commit-
ment to be made "prior to the paym ent of the tax," which was
done.
      We cannot presume that the Foreign Mission Board of the
Southern Baptist Convention has expended, intends to expend,
or will expend, the bequest or any part thereof for any pur-
pose other than "for the support of foreign missions" and
thereby violate the trust as provided in the will. Foreign
missions could be supported by the expenditure of funds in
Texas and other states in various ways, for example: (a)
paying the salaries and travel expenses of foreign misaion-
arias while they are home on furlough, (b) furnishing a
dormitory, tuition and other expenses of these furloughed
missionaries while they are attending the Southern Baptist
Theological Seminary at Fort Worth for further training in
their foreign missionary work, (c) paying (in Texas) the
travel expense of foreign missionaries to their foreign
fields, (d) purchasing household furnishings for foreign
missionaries and medicines, medical equi ment and supplies
to be sent to foreign mission fields, (eP paying the salaries
and travel expenses of field helpers in Texas who devote all
their time to supporting foreign missions, and (f) buying
literature and publishing literature in the Board's own pub-
lishing house at El Paso for distribution in foreign mission
fields.
      We are advised that the Foreign Mission Board of the
Southern Baptist Convention has , since its organization,
expended part of its funds in Texas to pay for the items
listed above, as well as many others--all of which are in
"support of foreign missions". We certainly cannot pre-
sume that such an organization would expend the funds in
question for uses other than "the support of foreign
missions", which is the sole purpose of its existence as
well as the direct mandate of the will.
      Therefore, it is our conclusion that the Mission Board
of the Southern Baptist Convention has complied with tax-ex-
emption provisions of the statute by committing the bequest
"for use exclusively within the state of Texas" prior to the
payment of the tax on such bequest, and that there is no
basis for challenge of the Board's power to make such com-
mitment of the funds under the language of the will above
discussed.
Honorable Robert S. Calvert, page 4 (WW-1073)




                     SUMMARY

              Where bequest "for support of foreign
         missions" was unequivocably committed for
         use exclusively within this State prior to
         payment of tax and where the beneficiary
         expends funds in Texas in support of its
         foreign mission program, such beneficiary
         would have power under the terms of the be-
         quest to make such commitment and thereby
         render the bequest exempt from taxation
         under the provisions of Article 7122, V.C.S.
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas



                               W:
                                    Assistant
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APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
L. P. Lollar
Joe Osborn
Arthur Sandlin
Linward Shivers
REVIEWED FOR THE ATTORNEY GENERAL
By: Morgan Nesbitt
