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AGLO 1978 No. 14 - April 17, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- SECRETARY OF STATE ‑- CORPORATIONS ‑- LICENSES ‑- FEES ‑- RESTORATION OF PRIVILEGE TO DO BUSINESS

Under the provisions of RCW 23A.40.075 and related statutes, the Secretary of State does not have the legal authority to exercise discretion and restore the privilege of doing business to a corporation which has failed to acquire an annual license fee for three years and which has failed to reinstate within the following two years.

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                                                                   April 17, 1978

Honorable Bruce K. Chapman
Secretary of State
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1978 No. 14

Dear Sir:

            This is written in response to your request, previously acknowledged, for our opinion regarding the proper interpretation of RCW 23A.40.075.  We paraphrase your question as follows:

            Under the provisions of RCW 23A.40.075 and related statutes, does the Secretary of State have the legal authority to exercise discretion and restore the privilege of doing business to a corporation which has failed to acquire an annual license for three years and which has failed to reinstate within the following two years?

            We answer this question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            The Washington Business Corporation Act, Title 23A RCW, establishes a comprehensive system for the organization and  [[Orig. Op. Page 2]] operation of profit corporations in the state of Washington.  Among its provisions is RCW 23A.40.075 which sets forth certain conditions whereby a corporation can cease to exist under the eyes of the law.  That statute, in relevant portion, provides:

            ". . .

            "Every domestic corporation which shall fail for three consecutive years to acquire an annual license for the privilege of doing business in this state shall cease to exist as a corporation on the third anniversary of the date it was last licensed to do business in this state.  When a corporation has ceased to exist by operation of this section, remedies available to or against it shall survive in the manner provided in RCW 23A.28.250 and the directors of the corporation shall hold the title to the property of the corporation as trustees for the benefit of its creditors and shareholders.

            "A domestic corporation which has not ceased to exist by operation of law may restore its privilege to do business by paying the current annual license fee and a restoration fee which shall include a sum equivalent to the amount of annual license fees the corporation would have paid had it continuously maintained its privilege to do business plus an additional fee equivalent to one percent per month or fraction thereof computed upon each annual license fee from the time it would have been paid had the corporation maintained its privilege to do business to the date when the corporation restored its privilege to do business:  PROVIDED, That the minimum additional license fee due under this section shall be two dollars and fifty cents.  A corporation which has ceased to exist may reinstate within two years by paying all fees specified above plus a reinstatement fee of ten dollars and upon doing so shall be reinstated and again be entitled to do business, and may use its former corporate  [[Orig. Op. Page 3]] name if that name is not then in use by a corporation then in existence. . . .  When any domestic corporation first fails to pay its annual license fee when due, the secretary of state shall, that year only, mail to the corporation at its registered office, by first class mail, a notice that if it does not pay its annual license fee it will no longer have the privilege of doing business in this state, and that the corporation's privilege may be restored as provided in this section, and the notice shall contain a reminder that, if the privilege is not restored for three consecutive years, the existence of the corporation shall cease without further notice."  (Emphasis supplied)

            As an administrative agency, the secretary of state's powers are limited to those expressly granted by statute.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956);Cole v. Wn. Util. & Transp. Comm'n., 79 Wn.2d 302, 485 P.2d 71 (1971).  While such an agency has some discretion to interpret an ambiguous statute relating to its authority, however, an agency may not alter or amend the provisions of such legislation and must interpret it within the statute's framework and policy.  Burlington Northern v. Johnston, 89 Wn.2d 321,   P.2d    (1977).  And where statutory language is plain, concise and unambiguous, it is simply not subject to statutory construction.  Kenworthy v. Bolin, 17 Wn.App. 650,   P.2d    (1977).  Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972), King Cy. v. Seattle, 70 Wn.2d 988, 425 P.2d 887 (1967).

            Clearly, in this case, the secretary of state is required to send out notices informing delinquent corporations (a) that their annual license fee is due, (b) that if they do not pay the fee they will no longer have the privilege of doing business in this state, and (c) that restoration of the privilege can be effectuated as provided by RCW 23A.40.075.  This notice must also remind the corporation that if the privilege of doing business is not restored its corporate existence will cease without further notice.  However, that appears to be the extent of the secretary of state's authority under this statute.  Likewise, we have also reviewed other related statutes in Title 23A RCW without finding any provision which would grant the secretary of state some discretionary authority in this area.   [[Orig. Op. Page 4]] Therefore, based upon the above‑stated legal principals, we must advise you, in direct answer to your question, that the secretary of state has no authority to restore the privilege of doing business to a corporation which has failed to acquire an annual license for three years and which has failed to reinstate within the following two years.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


CAROL A. SMITH
Assistant Attorney General

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