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 business as common carriers on 

January 1, 1944 under facts 

stated. 

Your letter of July 31, 1944, requests an opinion relative to the assessment 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 RaiLroad Commission records and certain facts have been developed 

therefrom. A few of the truck lineswere omitted from the minutes 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 received 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 operate pending the issuance of the final certificate, the final certificate being issued after January 1. Other carriers had filed their 

applications and clearly indicated that they were already operating, 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 circumstances 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 Comptroller 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 Legislature, 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 individual, 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 compelling words clearly showing a contrary intention, to have intended 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 mentioned 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 authorized 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 assessment is a necessary part of the levy. We think it does not strain the construction to hold that the certification of the intangible assessment is also a necessary 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 subject 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 

APPROVED 

OPINION 

COMMITTEE 

BY 

Chairman