Honorable Robert S. Calvert 

Comptroller of Public Accounts 

Austin, Texas 

Dear Mr. Calvert: 

Opinion No. M- 996 

Re: Time for refunding 

of tax payments 

under protest upon 

Comptroller's 

determination. 

( 

In response to your request, our Opinion No. M-140 

1967) was issued, which In substance held that Articles 

1 ..llA and 1.045, Title 122A, Taxation-General, Vernon's 

Civil Statutes, authorize the Comptroller, within the limitation period provided In Article 1.045, to pass upon the 

validity of claims for refunds of taxes and fees paid to 

him and to Issue warrants in payment of those found to have 

been paid under a mistake of fact, or under a mistake of 

law under duress. 

You now request our opinion whether payments made 

under protest and.paid into the Suspense account, pursuant 

to Article 1.05, of Title 122A, the claims for refund thereof 

having been administratively determined by you to be valid, 

can be refunded by you by warrants under each of the following three situations: 

"a 0 The determination Is made prior to expiration 

of the go-day period and before suit Is filed; 

"b. The determination is made after suit Is 

filed. 

"C. The determination is made subsequent to 

expiration of the go-day period and suit was not 

filed by taxpayer". 

In the event the Comptroller is not precluded 

by pendency of suit (with the taxpayer to whom 

the refund is contemplated) from adminlstratlvely 

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Honorable Robert S. Calvert, page 2 (M-996) 

determining that as a result of mistake of law 

or fact the taxpayer is due a refund by reason of 

overpayment, how may the Defendant Comptroller 

afford relief to Plaintiff taxpayer without 

litigating the suit? 

"Would a settlement in court be necessarily 

required?" 

Article 1.05, Vernon's Civil Statutes, provides for the 

payment of certain taxes and fees under protest and prescribes 

a ninety (90) day period within which suits may be filed 

for their recovery. 

We construe your request to relate only to monies paid 

under protest into and held in the Suspense account pursuant 

to Article 1.05 of Title 122A, These monies may be refunded 

by the Court under the provlsions of Article 1.05 (5) or 

thev ma8 be refunded by vou under orior Attorney General 

Opinion-Nos. w-w-116g(igh and WW-277(1957) where suit is 

not pending; see also Daniel v. Richcreek, 118 S.W.2d 935, 

937 (Tex.Clv.App. 1938, no writ).. 

Our prior Opinion No. M-140 (1967) does not relate to 

monies paid lnto and held in the Suspense account. While 

the monies therein considered alght have been paid originally 

Into the Suspense account, our Opinion and Article l.llA 

of Title 122A (and other Articles) therein considered make 

plain that the source of the funds from which payment was 

refunded to the taxpayer was 'I... from any funds approprlated 

for such purpose," as authorized In Article l.llA. 

Your authority to make refunds from monies paid into 

and held in the Suspense account Is a separate, unrelated 

and supplemental auth,ority to the authority granted to you 

under Article l.llA and considered In our former Opinion 

No. M-140. 

The remedy afforded by Article 1.05 Is not exclusive, 

but is cumulative. Union Cent. Life. Ins. Co. v. Mann, 

138 Tex. 242, 158 S.W.2d 477 (1941). The provlslo: of 

Article l.llA that payment of the refund shall be *.. from 

any funds appropriated for such purpose" clearly evidences 

the Legislative intent that the remedy afforded by that 

Article is In addition to any remedy afforded by Article 1.05. 

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Honorable Robert S. Calvert, Page 3 (M-996) 

The ninety (90) day period provided in Article 1.05 

Is a limitation period for the filing of suit for recovery 

of payments and has no bearing on the period in which the 

Comptroller can refund a claim upon his own determination. 

The llmltatlon period for an administrative determination 

refund, as pointed out In Attorney General's Opinion 

M-140, Is that period set out In Section (G) of Article 

1.045, that is, the same period of time within which 

the Comptroller may assess a deficiency with respect to the 

tax in question. 

In answer to situations "a'! and "c' of your request, 

you are advised that in view of the foregolng considerations, 

the payments made under protest may be refunded In those 

instances where the claims have been administratively determined by you to be valid, except where the same Issue of 

legality Is the subject of pending litigation In which the 

Comptroller is a party, and provided further that the 

period of llmltatlons for the administrative refund has not 

If the period of llmitatlon has expired, you would 

~~P$%;bited by the terms of Section (G) of Article 1.045 

from issuing any refund unless the taxes were paid under 

protest and their refund or credit be decreed by order of 

the Court. 

It should be noted In connection with situation 'c' 

that if the 90 days period for filing suit has expired and 

suit was not filed, Article 1.05, Section (5) requires 

that under such circumstances the account be transferred out 

of the Suspense fund Into the a proprlate fund in the state 

treasury. See also Article 438 E; , Vernon's Civil Statutes. 

Thus the Suspense fund Is no longer available out of which 

the taxes may be refunded. 

Our answer to your sltuatlon "b" Is that a warrant 

for refund or tax credit may not be issued for so long as 

the case is pending in the court. The court has continuing 

jurisdiction of the parties and the subject matter until 

that jurisdiction Is terminated.. 

Article 1.04 (l), Title 122A, in Its relevant portion 

reads, 

"All delinquent State taxes and penalties therefor 

due and owing to the State of Texas, of every 

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Honorable Robert S. Calvert, page 4 (M-996) 

character whatsoever, . . . and all other State 

taxes which become delinquent other than State 

ad valorem taxes on property shall be recovered 

by the Attorney General in a suit brought by 

him in the name of the State of Texas, ” 

IEmphasIs Added) 

Article 1.05 makes two relevant provisions. In its 

subdivision (1) is the provision that suit under that 

Article 

II 

. . . shall be brought against the public official 

charged with the duty of collecting such tax 

or fees, the State Treasurer and the Attorney 

General. . . .‘I (Emphasis Added) 

In subdivision (5) is the following, 

“If suit is not brought within the time and 

within the manner provided In this Article, or 

In the event it finally be determined in such 

suit that the sums of money so paid . . . belong 

to the State, then and In that event it shall 

be the duty of the State Treasurer to transfer 

such money from the Suspense account to the 

proper fund of the State . . . ” 

Also Daniel v. Rlchcreek, supra, in accord. 

The Attorney General is both party defendant and legal 

counsel for all party defendam Our opinion is that 

any amicable settlement of the claim by the parties plaintiff 

and defendants during pendency of the suit must be with 

his joinder and consent. 

However, you are further concerned and inquire whether, 

in the event the Comptroller upon further deliberation 

concludes that the taxpayer is due the refund or credit as 

a result of mistake of fact or mistake of law,the matters 

must necessarily be litigated or a court settlement Is 

necessarily required before the plaintiff taxpayer may 

obtain any relief. As long as the suit is in court, 

-4a60- 
Honorable Robert S. Calvert, page 5 (M-996) 

the matter would have to be decided and disposed of by 

final Judgment entered in the cause. On the other 

hand, in the event the suit Is dismissed and is no longer 

pending, then the taxpayer Is not necessarily precluded 

from perfecting his claim with the Comptroller, who may 

then approve the same if he administratively determines 

that refund Is due by reason of overpayment caused by 

mistake of fact or law, and the Comptroller may cause 

a warrant to be issued for the refund, payable out of the 

Suspense fund. Attorney General Opinion WW-277(1957) and 

ww-116g( 1961) 0 This relief Is available only If the 

funds are still In the Suspense account. 

-SUMMARYTaxes and fees paid to the State Comptroller 

under protest pursuant to Article 1.05, Title 

122A, Taxation-General, V.C.S., may be refunded 

upon his administrative determination within the 

period in which he may assess a deficiency 

for the tax, without the necessity of a law suit 

by the taxpayer. Art. 1.05 and Attorney General 

Opinion Nos. WW-277(1957 and WW-1169(1961). 

So long as a law suit is pending In Court, 

a warrant for refund or tax credit may not be 

issued. If the suit Is dismissed, the taxpayer 

is not necessarily precluded from perfecting his 

claim with the Comptroller, who may then approve 

the same if he admlnlstratlvely determines that 

refund is due by reason of overpayment caused 

by mistake of fact or of law and the Comptroller 

may issue warrant for the refund payable from 

the funds still held in the Sua ense .9 account. 

,/ 

Yours very truly, 

./f$?&& (L&g~. 

Attorney Gkeral of Texas 

Prepared by R. L. Lattimore 

Assistant Attorney General 

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i/ 
Honorable Robert S. Calvert, page 6 (M-996) 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

James Eiroadhurst 

Arthur Sandlln 

John Banks 

John Reeves 

SAM MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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