Opinion
No. 4431.
November 18, 1965.
Appeal from the 11th District Court, Harris County, Byron Johnson, J.
M. G. Nahas, Jr., Bert E. Derden, Houston, for appellant.
John Wildenthal, Jr., City Atty., Ralph A. Keen, Asst. City Atty., Houston, for appellees.
This is an appeal by defendant Phillip D. Allen from a personal judgment for personal property taxes for 1955 through 1957 in favor of plaintiffs, City of Houston and Houston Independent School District.
Plaintiffs sued 'Phillip D. Allen, individually and doing business as Allen Mfg. Co.,' and 'W. A. Plaster' for certain personal property taxes owing for the years 1955 through 1957 inclusive.
Defendant Allen answered that he and Plaster were partners, owning 1/2 interest in the partnership of Allen Manufacturing Company during 1955 and 1956; and further alleged that on December 3, 1956 the partnership dissolved and that Allen Manufacturing Company was incorporated; and that the corporation took over all assets and liabilities of the prior partnership; and the corporation only is liable for the 1957 taxes; and prayed that plaintiffs take nothing against him.
Defendant Plaster answered that Allen Manufacturing Company was incorporated on December 3, 1957 and the corporation only was liable for taxes after such date; and further that he was not made a party to the suit until more than 4 years after the taxes sued for became delinquent; and prayed plaintiffs take nothing as to him.
Trial was before the court without a jury which, after hearing dismissed the cause as to defendant Plaster 'by reason of the fact he was not made a party to said suit until after the running of the statute of limitations;' and entered judgment against defendant 'Phillip D. Allen, individually and doing business as Allen Manufacturing Company' for $1857.32 (taxes, penalty, interest and attorneys' fees on the personal property sued on for 1955 through 1957).
Defendant Allen appeals, contending: 1) The trial court erred in rednering judgment against him for the years 1955 through 1957 because the business was incorporated 'Around December 3, 1956,' and the 1957 taxes were the liability of the corporation only. 2) The corporation agreed to take over all liabilities of the partnership which included the taxes sued for, and is alone liable for such taxes.
Plaintiffs sued 'Phillip D. Allen, individually and doing business as Allen Mfg. Co.,' and 'W. A. Plaster,' and alleged that each of them 'own or claim some interest in' certain described personal property situated in Harris County, Texas, upon which the itemized taxes for the years 1955 through 1957 had not been paid. Plaintiffs prayed for judgment for such 1955 through 1957 taxes, together with penalty, interest and attorneys' fees.
The proof showed that during the years 1955 through 1956 defendant Allen was a partner in the property with W. A. Plaster; and continued as a partner with Plaster until January 10, 1957, when the partnership was dissolved and the business was incorporated. The property was owned by the partnership all during 1955, 1956, and until January 10, 1957. Each member of the partnership is individually liable for all of the taxes on the property for the years 1955 and 1956; and for the year 1957, since ownership of the property was in the partnership on January 1, 1957.
Any agreement of the corporation to assume liability for the partnership's debts, does not relieve the partnership and its members of liability for taxes owed to the plaintiffs.
The judgment is correct. Defendant's points and contentions are overruled.
Affirmed.