### TIXEATTOIECNEY GENERAL ~,PTExAS

HonorableRobert S. Calvert Comptrollerof Public Accounts Austin, Texas

**Dear Mr.** 

**.~ YOU**  opinionNO. c - 298 Re: Whether the Comptroller of Public Accounta Is Authorizedto release the Statels Hotel Occup&my tax lien when the a8ount of the'tu liability claimedby the State has'beehpaid under the' protert **statuta6t** Calvert: have requested our opinion on the followingquestion: May the Comptrollerof Public Accounts release, the State's lien,

created through the provisions of Article 

### 1.07,Title l22A, Taxation-General, Veinon~s Civil Statutesupon payaent of the Hotel: Occupancjt tax imposedby 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 delinquenttaxes, penalties end interest claimed by the Comptrollerto be due? ~Artlclel.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 acknowledgedor proved

required for deeds." (&aphasi.s

Added).

-1423-:. Hon. Robert S. Calvert,page 2 

### (c -,298 )

Since the State Comptrollerof Public Accounts is the State agency which filed the Hotel Occupancy tax lien, it is thereforethe agency empowered to Issue the release of said lien. As we have ascertainedthat 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), Stephensv. 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 determinewhether payment of taxes, penalties,and interestunder protest will be sufficientto discharge the Hotel Occupancytax 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 statutorymeans whereby a taxpayermight contest any levy of tax or fee which he believes or contends ie unlawful. The statutesprovide that the taxpayer is required to pay such amount as the public official chargedwith the collectionthereofmay deem to beg due to the State. Article 23.07, Title 122A, Taxation-General, Vernonls Civil Statutes, which providespenalties for being delinquent in reportingand paying the,HotelOccupancy tax states: '!If ky person shall failto fil&.a report as required herein or shall fall Copay to the Comptrollerthe 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, imposedby this article and due when payment Is made, are also to be includedbefore a payment under protest $6 a!sufficientpayment toauthorIze a,release of the State's lien.

- 1424-Hon. Robert S. Calvert,page 3 (C -298 )

We believe that by payment under protest of the entire amount of the taxes, penaltiesand interest -posed by Articles 23.02 and 23.07, and claimed by the Comptroller,the debt or obligationdue the State is dischargedfor the purpose of obtaininga 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 taxpayerdoes not control is State v. Hoffman, 109 Tex.133, 201 SW 653 (1918). Under a fact situationwhich is analogous to the one which we presentlyhave here, the Supreme Court upheld the lower court's ruling that payment Into the registry of a court will suffice to extinguishthe State's lien. In that case, the tax assessor-collector refused to accept the tender of taxes because penaltieswere not Included. After the State institutedsuit for the~taxes,penaltiesand interest, the~moniessued 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 (tendermaintained 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 requiredby the statutesand demandedby the State Comptrollerof Public Accounts, is sufficientdischarge of the Hotel Occupancytax obligationto warrant the release of the State's tax lien. answered in the affirmative. Your queation Is therefore'

SUMMARY The Comptrollerof Public Accounts is authorleedto release the State’s tax lien created through the provisions of Article 1.07, Title 122A, TaxationGeneral,when the full amount of the Hotel Occupancytax, penalties and interest demandedby the Comptrolleris 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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