Honorable Robert S. Calvert

Comptrollerof PublicAccounts Austin, Texas

Dear Mr. Calvert: OpinionNo. M- 996
Re: Time for refunding of tax payments under protest upon Comptroller's determination.


### ( In response to your request, our OpinionNo. M-140 1967) was issued,which In substanceheld that Articles 

### 1 ..llAand 1.045, Title 122A, Taxation-General,Vernon's Civil Statutes, authorize the Comptroller,within the limitationperiod 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 opinionwhetherpaymentsmade under protest and.paid into the Suspense account,pursuant to Article 1.05, of Title 122A, the claims for refund thereof having been administrativelydeterminedby you to be valid, can be refunded by you by warrants under each of the following three situations:

"a0 The determination Is made prior to expiration of the go-day period and before suit Is filed; "b. The determination ismade 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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determining that as a result ofmistake of law or fact the taxpayer is due a refund by reason of overpayment,how may the Defendant Comptroller afford relief to Plaintiff taxpayerwithout litigating the suit? "Woulda 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 suitsmay be filed for their recovery. We construeyour request to relate only tomonies paid under protest into and held in the Suspense account pursuant to Article 1.05 of Title 122A, Thesemonies may be refunded by the Court under the provlsions of Article 1.05 (5) or thevma8 be refunded by vou under orior AttorneyGeneral 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 OpinionNo. M-140 

### (1967)does not relate to monies paid lnto and held in the Suspense account. While themonies therein consideredalght 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 taxpayerwas 'I... from any funds approprlated for such purpose," as authorized In Article l.llA.
Your authority tomake refunds frommonies paid into and held in the Suspense account Is a separate,unrelated and supplementalauth,ority to the authority granted to you under Article l.llA and considered In our former Opinion No. M-140. The remedy affordedby Article 1.05 Is not exclusive, but is cumulative. Union Cent. Life. Ins. Co. v. Mann, 

### 138Tex. 242, 

### 158 S.W.2d 477 (1941). The provlslo: of Article l.llA thatpayment 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 affordedby Article 1.05.

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### 3 (M-996)

The ninety (90)day period provided in Article 1.05 Is a limitationperiod 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 llmltatlonperiod for an administrativedetermination 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 Comptrollermay assess a deficiencywith 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 paymentsmade under protestmay be refunded In those instanceswhere the claims have been administrativelydetermined 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 administrativerefund has not

If theperiod of llmitatlonhas 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 connectionwith 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 taxesmay be refunded. Our answer to your sltuatlon "b" Is that a warrant for refund or tax creditmay not be issued for so long as the case is pending in the court. The court has continuing jurisdiction of the parties and the subjectmatter until that jurisdiction Is terminated.. Article 1.04 (l),Title 122A, in Its relevantportion reads, "Alldelinquent State taxes and penalties therefor

due and owing to the State of Texas, of every

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characterwhatsoever,

... 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 1.05makes two relevant provisions. In its subdivision (1) is the provision that suit under that Article II

... shall be brought against the public official chargedwith the duty of collecting such tax or fees, the State Treasurer and the Attorney General.

...‘I (EmphasisAdded)
In subdivision 

### (5) is the following,

“If suit is not broughtwithin the time and within themanner provided In thisArticle, or In the event it finally be determined in such suit that the sums ofmoney so paid

...belong to the State, then and In that event it shall be the duty of the State Treasurer to transfer suchmoney 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 partiesplaintiff and defendantsduring pendency of the suitmust be with his joinder and consent. However,you are further concerned and inquirewhether, in the event the Comptrollerupon further deliberation concludes that the taxpayer is due the refund or credit as a result ofmistake of fact ormistake of law,thematters must necessarilybe litigated or a court settlement Is necessarily required before theplaintiff taxpayermay obtain any relief. As long as the suit is in court,

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thematter 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 necessarilyprecluded from perfecting his claim with the Comptroller,who may then approve the same if he administrativelydetermines that refund Is due by reason of overpaymentcaused by mistake of fact or law, and the Comptrollermay cause a warrant to be issued for the refund, payable out of the Suspense fund. Attorney General OpinionWW-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 administrativedeterminationwithin 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 OpinionNos. WW-277(1957 and WW-1169(1961). So long as a law suit is pending In Court, a warrant for refund or tax creditmay not be issued. If the suit Is dismissed, the taxpayer is not necessarilyprecluded from perfectinghis claim with the Comptroller,who may then approve the same if he admlnlstratlvelydetermines that refund is due by reason of overpaymentcaused by mistake of fact or of law and theComptroller 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 Preparedby R. L. Lattimore AssistantAttorney General

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APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman
James Eiroadhurst Arthur Sandlln John Banks John Reeves SAM MCDANIEL Staff Legal Assistant
ALFREDWALKER Executive Assistant
NOLA WHITE First Assistant

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