Opinion
No. 29940
Decided December 27, 1944.
Taxation — Foreign corporations — Franchise tax imposed for privilege of doing business, etc. — Sections 5498 and 5499, General Code — Exercise of all enumerated privileges not necessary — Foreign corporation doing interstate sleeping car business liable for tax — Interstate business arising in Ohio included in determining tax base.
1. Under the provisions of Sections 5498 and 5499, General Code, a franchise tax is imposed on a foreign corporation for the privilege of doing business in this state or owning or using a part or all of its capital or property in this state or for holding a certificate of compliance with the laws of this state authorizing it to do business in this state. (Paragraph 1 of the syllabus in the case of Aluminum Co. of America v. Evatt, Tax Commr., 140 Ohio St. 385, approved and followed.)
2. In order to be liable for such tax it is not necessary that a foreign corporation exercise all of the enumerated privileges. (Paragraph 2 of the syllabus in the case of Aluminum Co. of America v. Evatt, Tax Commr., supra, approved and followed.)
3. A foreign corporation doing a sleeping car business in this state and using part of its property in this state is liable for such tax although such corporation is a public utility engaged in interstate commerce and therefore not required to obtain a license from the Secretary of State.
4. In the determination of the base for such tax the amount of such corporation's interstate business arising in this state should be included.
APPEAL from the Board of Tax Appeals.
The appellant, the Pullman Company, is an Illinois corporation with its principal office and place of business located in the city of Chicago, Illinois.
As a public utility the appellant owns property in Ohio and transacts part of its sleeping car business and operations — interstate and intrastate — in Ohio.
Upon a demand by the appellee Tax Commissioner the appellant, as a foreign corporation, filed franchise tax reports for the years 1941 and 1942. Thereafter the commissioner made a determination of the value of the appellant's property and business as a basis for computing the tax or fee.
From this determination the Pullman Company perfected an appeal to the Board of Tax Appeals, and the assessments were affirmed.
From that judgment of affirmance an appeal has been perfected to this court under the provisions of Section 5611-2, General Code.
Messrs. Dunbar Dunbar, Mr. Herbert S. Anderson, Mr. Frank A. Malone and Mr. Lowell M. Greenlaw, for appellant.
Mr. Thomas J. Herbert, attorney general, and Mr. Perry L. Graham, for appellees.
The appellant insists that the decision of the Board of Tax Appeals is unreasonable and unlawful for two reasons.
Its first contention is that it is not subject to the corporation franchise tax or fee imposed by Sections 5498 and 5499, General Code; and this is based on the view that it is not among those corporations referred to in the latter section which provides in part that "on or before June 15th the auditor of state shall charge for collection from each such corporation a fee * * *." (Italics supplied.) Patently this reference is to the cognate provisions of Sections 5495 and 5495-2, General Code, likewise originally enacted in substantially their present form in 1927 (112 Ohio Laws, 410) in an act entitled, "An Act to provide for the determination, charging and collection of a corporation franchise tax for the privileges of exercising the corporate franchise and of doing business within this state * * *." Section 5495 reads in part as follows:
"The tax provided by this act for * * * foreign corporations shall be the fee charged against each corporation organized for profit under the laws of any state or country other than Ohio, except as provided herein, for the privilege of doing business in this state or owning or using a part or all of its capital or property in this state or for holding a certificate of compliance with the laws of this state authorizing it to do business in this state, during the calendar year in which such fee is payable."
The appellant does not claim the benefit of any exception or exemption provided in this act.
Likewise, Section 5495-2 provides in unambiguous language as follows:
"Annually, between the first day of January and the thirty-first day of March * * * each foreign corporation for profit, doing business in this state or owning or using a part or all of its capital or property in this state, or having been authorized by the Secretary of State to transact business in this state, shall make a report in writing to the Tax Commission in such form as the commission may prescribe."
The broad terms of these sections leave no doubt as to their applicability to the appellant which concededly is doing business in this state and is using part of its property in this state. The appellant relies upon the conceded fact that it is a public utility engaged in interstate commerce and therefore is not required to obtain a license from the Secretary of State. However, in order to be liable for this tax it is not necessary that the appellant exercise all three of the enumerated privileges. The General Assembly has employed the disjunctive "or" and has indicated plainly, that the tax is imposed for the exercise of any one or more of the three privileges. Then, too, in the first two paragraphs of the syllabus in the case of Aluminum Co. of America v. Evatt, Tax Commr., 140 Ohio St. 385, 45 N.E.2d 118, this court said:
"1. The franchise tax levied pursuant to Sections 5498 and 5499, General Code, on a foreign corporation is for the privilege of doing business in this state or owning a part or all of its capital or property in this state or for holding a certificate of compliance with the laws of this state authorizing it to do business in this state. (Section 5495, General Code.)
"2. 'Doing business' in this state is only a part of the privilege taxed under Section 5495, General Code. The tax also covers the privilege of owning a part or all of the foreign corporation's capital or property in this state as well as the privilege of holding a certificate of compliance with the laws of this state."
The appellant complains further that it already pays a franchise tax under the requirements of Section .5462 et seq., General Code. However, a study of the provisions of those sections demonstrates that the tax there imposed is not a franchise tax but a property tax.
The appellant contends also that it is entitled to the protection of Section 8625-3, General Code, which reads in part as follows:
" This act shall not apply to * * * public utility companies engaged in this state in interstate commerce." (Italics supplied.)
This provision of the separate, so-called Foreign Corporation Act relates simply to the obtaining of a certificate of compliance in order to engage in business in Ohio and makes no reference to the payment of the franchise tax.
The appellant's second reason for insisting that the decision of the Board of Tax Appeals is unreasonable and unlawful is the inclusion in the tax base of the amount of its interstate business arising in Ohio. It is contended that the General Assembly did not provide for the inclusion in the franchise tax base of moneys received by the appellant in Ohio in payment for its service of furnishing accommodations for interstate journeys by railroad. However, it is to be observed that one of the privileges taxed is that of "doing business in this state or owning or using a part or all of its capital or property in this state." Neither interstate nor intrastate business is mentioned. The provision is general, and there is no more reason for inferring an exclusion of interstate business than intrastate. This court so held in the case of Aluminum Co. of America v. Evatt, Tax Commr., supra.
The decision of the Board of Tax Appeals is neither unreasonable nor unlawful and must be affirmed.
Decision affirmed.
MATTHIAS, HART, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur.