TIXEATTOIECNEY GENERAL 

~,PTExAS 

Honorable Robert S. Calvert 

Comptroller of Public Accounts 

Austin, Texas 

Dear Mr. 

.~ YOU 

opinion NO. c - 298 

Re: Whether the Comptroller 

of Public Accounta Is 

Authorized to release 

the Statels Hotel Occup&my tax lien when the 

a8ount of the'tu liability claimed by the State 

has'beeh paid under the' 

protert statuta6t 

Calvert: 

have requested our opinion on the following question: 

May the Comptroller of Public Accounts release, 

the State's lien, created through the provisions 

of Article 1.07, Title l22A, Taxation-General, 

Veinon~s Civil Statutes upon payaent of the 

Hotel: Occupancjt tax imposed by Chapter 23, 

Article 23.02, Title 122A, Taxatloh-General, 

Vernon's C%yil Statutes, upon payment under 

the protest',statutes, Article 705i'b and 

Article 1.'05 of eaid Title 122A, by the taxpayer of the delinquent taxes, penalties end 

interest claimed by the Comptroller to be due? 

~Artlcle l.Om,, Tam&ion-General, Title 122A, provides in 

part that: 

* 

I1 . . ..Satisfactiom of auy state tax lien may 

be shown by a receipt, acknowledgment or release 

ed by a representative of the estate agency 

t fil d such lieh, 

reco:d as 

ahd acknowledged or proved 

required for deeds." 

(&aphasi.s Added). 

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:. 

Hon. Robert S. Calvert, page 2 (c -,298 ) 

Since the State Comptroller of Public Accounts is the 

State agency which filed the Hotel Occupancy tax lien, it is 

therefore the agency empowered to Issue the release of said 

lien. 

As we have ascertained that the State Comptroller has 

the porrer to issue the release of the tax lien, the question 

for determination now becomes under what conditions may the 

Hotel Occupancy tax lien be released? 

In the cases of Mllburn v. Athans, 190 SW 2nd 388 (Tex. 

Clv. App., 1945, error dism.), Klstler v. Latham, 255 SW gg!J 

L 

Tex.Com.App.1923), Stephens v. Moodle, 30 -0 (Tex.Civ. 

pp. 1895, error ref.), the. courts held that a, lien Is dlscharged by a proper and sufficient payment of the debt or obligation which it secures. Thus, we must determine whether payment of taxes, penalties, and interest under protest will be 

sufficient to discharge the Hotel Occupancy tax obligation 

owed to the State of Texas. 

The protest statutes, Article 705i'b, Vernon18 Civil Stat., 

utes, and Article 1.053 Taxation-General, Vernon's Civil Statutes, provide a statutory means whereby a taxpayer might 

contest any levy of tax or fee which he believes or contends 

ie unlawful. The statutes provide that the taxpayer is 

required to pay such amount as the public official charged with 

the collection thereof may deem to beg due to the State. 

Article 23.07, Title 122A, Taxation-General, Vernonls Civil 

Statutes, which provides penalties for being delinquent in 

reporting and paying the,Hotel Occupancy tax states: 

'!If ky person shall failto fil&.a report as 

required herein or shall fall Copay to the 

Comptroller the tax as imposed heFein when 

raid report or payment Is due) the shall forfeit five per cent 

ai 

5s) of the amount due 

as a penalty, and ter the'first ,thirty (30) 

dys he shall forfeit an additionaLfive per 

cent (5$) of such tax. Provided,. however, 

that the penaltyi'shall never be less than One 

pollar ($1). Delinquent, taxes shall draw intereet atthe rate of six per dent (6%) per annum 

beginning sixty (60) days from the date due." 

The civil penalties, imposed by this article and due when payment 

Is made, are also to be included before a payment under protest 

$6 a! sufficient payment toauthorIze a,release of the State's lien. 

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Hon. Robert S. Calvert, page 3 (C -298 ) 

We believe that by payment under protest of the entire 

amount of the taxes, penalties and interest -posed by Articles 

23.02 and 23.07, and claimed by the Comptroller, the debt or 

obligation due the State is discharged for the purpose of 

obtaining a release from the Hotel Occupancy tax lien. 

A case which Is quite similar in regard to the stiflclency 

of the payment of the tax money into a repository which the 

taxpayer does not control is State v. Hoffman, 109 Tex.133, 

201 SW 653 (1918). Under a fact situation which is analogous 

to the one which we presently have here, the Supreme Court 

upheld the lower court's ruling that payment Into the registry 

of a court will suffice to extinguish the State's lien. In 

that case, the tax assessor-collector refused to accept the 

tender of taxes because penalties were not Included. After 

the State instituted suit for the~taxes, penalties and interest, the~monies sued for were paid into the registry of the 

court. The Court of Civil Appeals in the ssme case held that, 

"The lien was extinguished by the tender, made good 

by the payment into ths registry of the court...." 

lgo SW 1163 (1916) 

The Supreme Court stated, 

"With this true (tender maintained through the payment 

of money into registry of the court), the lien upon the 

property for the taxes stood discharged, and the court 

properly refused to foreclose It." (at page 654) 

We conclude that payment of the tax under protest, penalties and interest, as required by the statutes and demanded by 

the State Comptroller of Public Accounts, is sufficient discharge of the Hotel Occupancy tax obligation to warrant the 

release of the State's tax lien. 

answered in the affirmative. 

Your queation Is therefore' 

SUMMARY 

The Comptroller of Public Accounts is 

authorleed to release the State’s tax 

lien created through the provisions 

of Article 1.07, Title 122A, TaxationGeneral, when the full amount of the 

Hotel Occupancy tax, penalties and interest demanded by the Comptroller is paid 

to the State pursuant to the protest 

statutes. 

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. - 

Bon. Robert S. Calvert -page4(C-296) 

Pow6 very truly 

WAGGONER CARR 

Attorney General 

, 

HG:wh 

OPMION CT 

W. V. Geppert, Chairnrn 

Bill Allen 

Unward Shiver6 

.%alcolm Quick 

Joe Long 

APPROVEDF0RTH.E A~Ol?WA7GEWERAL 

By: Stanta Stone "3 

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