‘%KsrIN 11. Trzvas PRICE DANIEL .\TTORXEY CF.NE”Al August 16, 1951

Hon. John Ben SheDperd Secretaryof Statk’ Austin, Texas Ooinion No. V-1239

Ae: Authority of the Secretary of State to waive, compromise,or reduce the penalties for late filing of franchise tax reports (Art. **7089)** and franchise taxes (Art. 7091). Dear Sir:

You.haverequested the opinion of this office
on the folqowlngquestion:

“May the Secretaryof State, under certain extenuatingcircumstances

. . . accept late filing of the tax report and late payment of franchisetax without levying the penaltiesof 10 per cent and 25 per cent as provided for in Articles 7089 and 7091, V.R.C.S.?”

In connectionwith your request you have stated four examples of “extenuatingcircumstances” which are actual cases In your fiAes and you refer to a letter oplnion of this office addressedto Hon. Paul Ii. Brown, Secretary of State, dated August 23, 1948, which you state psesents the answer to a differentproblem.

,The fact that the office of the Secretaryof State was confrontedwith requests by various corporate taxpayersthat under certain “extenuatingcircumstances” the Secretaryof State should waive the penalty for late filing of the franchisetax report prescribed In Article **7089,** v.>c.s.,

or the penalty for Late pajrm*nr of Qhe franchisetax prescribedby Article~7091, V.,C :.S *, constituted the basis for the request by Hon. Paul. H. ~~r~+~-. .x thins

same subject He asked whether the penalties prwided for’ln each of the foregolng Articles were man- :&tory or whether ttie Secretaryof Stare had the authority CG waive, compromise,or reduce the penaltiesupon z?plicationand for cause deemed sufficient in the dlscrezicn cf the Secretary af State.,

Hon. John Ben Shepperd, P%gO 2 (V-1239)

In holding ihat & corporation nhigh 'fails

to file Its franahiae tax report or falls to piry ft.6f'ran**chiBe** tax uhen due becoaes fmediatel7;liable for the .f POMltlea provided **for** fti &tfclea 70 9 and **7091,** V.C.S., rOepeCtlvely,and that the Secretaryof state has no aU%borlty to wafve, aompromlae,or reduce the pen ltier 10 providedunder any clrcwtancefJ, the 4 opinion’ o Hon. ?Bul H. Brown sta$es in part8

“The queetionof whether or not the provielonsof 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 construction when the sts%ce is exoressed in Dlain and unamblnuouslan**.--~~ ~-~**  guage and its me&l 73 is clear aiid obvious. **39** Tex.JW. 161, I 8 a

“me provisionsof **each** of the statlrtes here in questionare expressedin plain an,3 unambiguouslangvge. Article 7089, V.C.S., clearly providesqhat franchisetax reports are due between Jinuary 1st and March 15th of each yea-, but that the Secretaryof St.a% may for good causs shown by any conporstioa, extend such time up to Mar lat. AK;~ccrpcr&Ion failing to file Its report shall be assessed a penalty of ten per cent. *tic: f’ 7Ogl~~V.C.S.,Talao provides in clear and WAtietakable languagetlzat I? a corporation **falls to**  pay its **franchise** tax when due, ft ahall thereuponbecome liable to a penalty of twenty-fiveper cent oi the amoun% of ruch franchise tax due by euoh corporation. **Bowever,** even if'

the statute6were ambPguous and thus aubbjeot

to conetructlon, It fs no$ed that,~lt

haa long been the departmentalconrtrmotlonpi the offfoe of the Secretaryof State that'thepenaltieein questionare mandatory and cannotbe waived, oompromifacd or reduoed. The Legislaturehas met aany time8 s:nce such comtructlo~ was given the statutes by the SecretarTof State, but has not undertaken to change the statute 80 81) to alter **thla conatmct%on.**  This offfce doe8 not feel justfffedto held now that the Seoretary of state wa6 i%e e:ppor 1x1 so 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 questionof 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 Officerspossess only such., authorityas is conferredupon them by law, **34** Tex. Jur. 440 8 **67.** As no authority Is given the.~Secretary of State to waive, compromise or reduce the penaltiesprovided for in Articles 7089 and 7091, V.C.S., he has no authority to do so."
This office has carefullyreconsideredthe foree;cMg opinion In the light of the factual examples of extenuatingcircumstances" 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 conclusionunder the rule of law announced by the Supreme Court in the case of Federal Crude 011 Comany v. Yount-Lee 011 Company, 122 Tex. 2 2 (1932) 1, **52** S.W.2C56,

,.as follows:
,"Mhere the officersof the state~government, dtifng a long period of years, have construed a statute of doubtful Import and the
same Is later re-enactedby the Legislaturein substantiallythe same form, it will be presumed that the lawmakingbody knew **of** the COEstructlonplaced upon Its languageby such officers, and that, if ft uas not aatlsfled t,hrt Its intentionhad been rightly interpreted, .it~uould

have so changed the verbiage of the act as to have shown clearly ,a contrary intention.". ', ! ; Since the ruling of this office on the questions i&lved on August 23# 1948, the Legislaturehas met in Regular Session In the year 1949, In Called Session in the year 1950, and again in Regular Session in the year 1951. At Its Regular Session in 1949. the Legislature amended Articles 7089 and 7091, V.C.S. 'Acts 51st Leg,, ch. 536, pa 975, sets. **5** and 7. It must be presumed that the LecgfslatuPe knew ot the constsuctionplaced 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 intentionhad been rightly Interpreted,it could have changed the verbiageof the'twoArticles In question so as to authorizethe Secretaryof State In his discretion to walvir,

compromise,or reduce the.penaltlesin question under such circumstances as were found by the Secretary of State to be extenuating. This t do, and therefore, Pe Legislaturedid not under the forego ng rule of law, It must **be** presumed that the LegislatureconcurredIn the departmentalconstruction by the Secretary of State and the opinion of this office.

It Is the opinion of this office that the-Secretary of State has no authorityto waive, comp?omlse,or reduce the penaltiesprovl#ed for failure to make and fl:e the franchisetax reports !a8required by the provisions of Article 7089, v.c.s., &d to pay the franchisetax due
as prov%dUd In Artlcler7O+l, V.C.S., **the** liabilityfor such penaltiesbeing **mandatory.**

**SUMMARY**

The Secretaryof State has no authority to waive, compromise,or reduce the penalties for late filing of tianchlse tax returns as providedin Article 7089, V.C.S., or the penalty for late payment of franchisetaxes as provided InArtIcle 7091,V.C.S., the liabiilty for such penaltiesbeing mandatory.

very truly yours9

APPROVED: PRICE DANIEL Attorney GeEal

Everett Hutchlnson ExecutiveAssistant

Charles D, Mathews C. K:. Richards First Assistant Assistant

CKFltwb:em