Honorable   George  H. Sheppard
Comptroller   of Public Accounts
Austin 11. Texas

Dear   Sir:                                          Opinion    No.   O-6138

                                                     Re:     State Tax Board may certify
                                                            intangible assessment  found
                                                           on carriers   engaged in busi-
                                                           ness as common carriers     on
                                                           January 1, 1944 under facts
                                                           stated.

       Your letter of July 31, 1944, requests    an opinion relative to the assess-
ment of a tax on the intangible    assets of the busses and trucks as provided    in
Chapter 4, Title   112, Revised   Civil Statutes of Texas as amended by House
Bill 8, Acts of the 47th Legislature.

        We quote   the second    and the last paragraph        of your   letter   as follows:

             “A re-check    and investigation     has been made of the RaiL-
       road Commission       records    and certain facts have been developed
       therefrom.     A few of the truck lineswere         omitted from the min-
       utes of the State Tax Board dated June 20, 1944. We find that
       some of the truck lines’ certificates        have been transferred          to a
       new concern     purchasing    these certificates.       The purchaser       re-
       ceived the seller’s    authority    after January 1, 1944. However,
       the business    was in operation     on and before     January 1, 1944,
       with neither theold      nor the new operator       being assessed.        In
       other cases they had received         a temporary     certificate     to oper-
       ate pending the issuance       of the final certificate,      the final certifi-
       cate being issued after January 1. Other carriers                had filed their
       applications   and clearly    indicated   that they were already         operat-
       ing, but convenience      and necessity    had not been proven,         and the
       Railroad    Commission      had not issued their certificates         until after
       the first of the year.     It might be stated at this point that we made
       no attempt to develop a case if the certificate           was issued after
       the first of March,     1944, and in no case did we even list a line
       that had filed an application      prior to January 1.
Honorable      George            H. Sheppard,   Page   2   O-6138



                I.
                     .   .   .




                “Please   advise me whether       or not the State Tax Board
          will be allowed    to certify   any intangible   assessment    found on
          the carriers    that were constructively       engaged in business      as
          a common carrier       at January 1 under any or a11 of the circum-
          stances as mentioned        in the second paragraph     of this letter.
          If your answer to this question        should be negative,   then advise
          whether    or not the assessor     may back-assess      these intangible
          values after he has been notified        of the amount by the Comptrol-
          ler of Public Accounts,       or by any other method that would enable
          him to discover     these values.”

We believe    that the Attorney   General’s     opinions numbers       O-3546 and O-4441,
both of which were addressed       to you, when considered         together,   substantially
answer the question here stated.        In  the  opinion which    follows,   we  are relying
upon these previously     written  opinions and have attempted          merely   to combine
those portions    of said opinions which most directly        relate to your question        in
order that you may have the substance           of such opinions before you in a more
convenient   form.

               Article 7105 of Vernon’s  Civil Statutes             of Texas ss amended by
Article     13 of House Bill 8, Acts 47th Legislature,              Regular  Session, provides:

                ,A. , ’. each ‘motor     bus company,’ as defined in Chapter             270,
          Acts, Regular       Session    of the Fortieth     Legislature,      as amended
          by the Acts of 1929, First         Galled Session       of the Forty-first      Leg-
          islature,     Chapter    78, and each ‘common          carri,rr   motor carrier’
          operating      under certificates     of convenience       a&i necessity     issued
          by the Railroad        Commission      of Texas,     doing business wholly or
          in part within this State, whether          incorporated        under the laws of
          this State, or of any other State, terri.tory,            or foreign    country,
          and every other individual,          company,     corporation,      or association
          doing business       of the same character         in this State, in addition to
          the ad valorem        taxes on tangible     properties      which are or may be
          imposed       upon them respectively,       by law, shall pay an annual tax
          to the State, beginning       with the first day of January of each year,
          on their intangible       assets and property,        and local taxes thereon
          to the counties      in which its business       is carried      on: ~ . .”

            Opinion No. O-4441 held that the Legislature     intended to include
within the terms of the statute carriers  operating   without a certificate   in the
following paragraph  quoted from that opinion:
Honorable     George    H. Sheppard,    Page   3    O-6138




              “The Legislature       must have had some purpose in mind when
        it enacted the sentence        in Article   7105 that ‘every       other individ-
       ual, company,     corporation        or association     doing business      of the
       same character       in this state, in addition to the ad valorem              taxes
        on tangible   properties      . . . shall pay an annual tax to the state . . ,
       on their intangible      assets and property,         and local taxes thereon
       to the counties    in which its business          is carried    on . . .’ We think
       that the Legislature       clearly     meant to include, within the meaning
       of the sentence     Just quoted from Article          7105, any individual        or
       concern    ‘doing business       of a similar     character’     to a ‘motor bus
       company’ or a ‘motor          carrier.’     The fact that the individual         or
       concern    has not complied        with the laws of this state does not
       weaken the strength        of our conclusions.         Rather    it strengthens
       it. The Legislature        cannot be presumed,          in the absence     of com-
       pelling words clearly        showing a contrary         intention,   to have in-
       tended an absurd, or unjust or unfair result of the application
       of the intangible     tax law so as to result in pecuniary             advantage
       or favor to those who willfully           or inadvertently      disregard    the
       laws of this state.      39 Tex. Jur., p. 246. We think the statute
       permits    no such interpretation.”

Clearly   it is not necessary   to broaden the construction here placed on the
statute in order to include within its terms the truck lines or operators    men-
tioned in paragraph     2 of your letter.

             Thus far we have held that the lines mentioned      in your  letter are
subject to the assessment    of an intangible  assets tax. In holding further that
the State Tax Board may certify      such intangible  assessment    found on carriers
that were engaged in business     as a common carrier      on January 1 under the
circumstances    stated in your letter, we cite the authority    of the case of Cadena
v. State, 185 S. W. 367 as quoted in opinion No. O-3546:

             “All property   owned on the 1st day of January is subject to
       any tax authorized    by law, whether   such taxes have been author-
       ized theretofore    or may be authorized    during the year, and can
       be levied by the body given the power to levy at any time during
       the year.    Laws naming the time for the levy of taxes are merely
       directory,   and legal taxes can be levied whenever       the necessity
       arises.    Laws authorizing   taxes are not retrospective     so far as
       the year in which they are authorized      is concerned.”

See also    Masterson    v. Hedley,    265 S.W.    406;   61 C. J. 564.
                                                                                              -         .




Honorable      George   H. Sheppard,   Page   4   O-6138




              While the words “levy”       and “assessment”      as used in tax parlance
are not exactly    synonymous,      yet the one includes the other in that the assess-
ment is a necessary       part of the levy.    We think it does not strain the construc-
tion to hold that the certification      of the intangible  assessment    is also a neces-
sary part of the process       of the levying   of the tax, and, that in order to carry
out the intention    of the statute, that which is subject to taxation      may be assessed
and certified   within a reasonable      time after the date mentioned      in the statute
for such certification     when it is found or discovered       to have actually  been sub-
ject to the tax on January 1.

               Since we have answered     in the affirmative your prmcipal  question,
it becomes      unnecessary to consider    the question which you propounded   in the
aiternative.

                                                           Yours    very   truly,

                                                    ATTOR_NEY        GENERAL             OF TEXAS



                                                    BY
                                                           Robert    F. Cherry
                                                                     Assistant.
                                                                                                    u

RFC/JCP



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