A copy of the verified protest setting forth the grounds of plaintiff's objections was attached to the complaint, marked "Exhibit A," and incorporated by reference. The single issue to be determined is whether, under the terms of the Franchise Tax Act, the appellant, a New York corporation having its principal office in Colorado, but qualified to do business in California, and having control of the policies and operations of a California corporation through ownership of 70 per cent of the latter company's capital stock, is entitled to deduct a loss sustained on liquidation of the domestic company, whose business within the state was the same in character as the unitary business of appellant within and without the state.
July 2, 1941.] HOLLY SUGAR CORPORATION (a Corporation), Appellant, v. JOHNSON, as State Treasurer, etc., Defendant; CHAS. Thus, the plaintiff, Holly Sugar Corporation, "suffered an uncompensated loss of ,166,873.59 in the transaction." The franchise tax commissioner refused to consider this loss in computing the tax, and an additional assessment was levied in the amount of ,759.79, which together with 0.79 interest thereon, plaintiff paid under protest--the total exaction being ,100.58. The portion of net income derived from business done within this state, shall be determined by an allocation upon the basis of sales, purchases, expenses of manufacturer, pay roll, value and situs of tangible property, or by reference to these or other factors, or by such other method of allocation as is fairly calculated to assign to the state the portion of net income reasonably attributable to the business done within this state and to avoid subjecting the taxpayer to double taxation." [1a] The precise question raised by this appeal has not heretofore been presented to this court.
The number of shares so purchased constituted 70 per cent of the total outstanding capital stock of the Santa Ana Sugar Company, and after the acquisition of this stock the plaintiff "controlled the policies and operations of the said Santa Ana Sugar Company," which was engaged in California in growing sugar beets and marketing and refining the sugar therefrom.
Prior to January 1, 1928, plaintiff acquired 4173.4 shares of the capital stock of Santa Ana Sugar Company, a California corporation, at a cost of $1,808,253.
Its principal business consists of growing sugar beets and marketing and refining the sugar therefrom.
A foreign filing is when an existing corporate entity files in a state other than the one they originally filed in.
It is important to note that this is a foreign filing.
This corporate entity was filed approximately fifty-three years ago on Monday, December 9, 1963 , according to public records filed with California Secretary of State.
filed as a Statement & Designation By Foreign Corporation in the State of California and is no longer active.
This does not necessarily mean that they are from outside the United States.
It is our opinion that the force and logic of this latter contention are decisive of this appeal in favor of appellant and eliminate any necessity for treatment of the first proposition, with its attendant considerations of statutory interpretation.
In support of its position appellant advances two arguments: (1) that under the terms of the act, the franchise tax for a foreign corporation doing business within and without the state is to be measured by application of the allocation formula to the entire net income, however or wherever derived, in order to ascertain the portion attributable to business done in California; and (2) that in any event the integration of the operations of the Santa Ana Sugar Company with the activities of appellant's multistate sugar business fixed the situs of the stock loss in California and established the propriety of the claimed deduction.
The tax subject of dispute was levied under the provisions of section 10 of the California Bank and Corporation Franchise Tax Act (Stats. If, under these circumstances or conditions, appellant should not be allowed to include such stock loss in computing the net income for measure of the California franchise tax, then the demurrer was properly sustained; otherwise not.