No. 310% 

Res Date or payment or unemployment 

oompenratlon tax a8 8frectinp the 

tollins 0r limitation undar 

Artiola SWlb-12(j) Yarnon's 

Annotated Civil Statutes, 

Texaa Unemployment Compenretlon Cos&aslon 

Brown Duilding 

Austin, Texas 

Gentlemen: 

Opinion No. O-42618 

we have received and aarerully considered your 

opinion J:equest of recent date. In order to ruiiy eat out 

the facts involved, we quote your letter in full: 

"This request has reterenoe to the refund providons cf the Texas Unenploymnt Con?ensstlcn .$ct 

(Article 522lb-12(j), Vernon'e Annotated Civil Stati.mu Or n~3a, 193). You have prnvionaly iercued 

your opinions Wo. O-459 on Maroh 17, 1939, and O-1705 

on Earoh 7, 1940. Those: two opinions nre oited in 

your opinion No. O-2183 dated June 13, 1940, 

*In the year 1940 the Conrmlaeion esaerted tax 

liability aGainat X impa~y for unsn~lo~rment Taxes 

ior the period January 1, 1937 through December 31, 

1059. X Comaany denied liabilfty but in 1940 mid all 

of the taxes which the Commission claimed were-owing. 

At 'its time it paid th,e terns it filed an applioatlon 

for refund in accordanos with the terms of the Unemploymorit *let. In 1942 c I"edaral oourt flnelly estublisbacI 

the correotneea or the oorporatlonls contention of nonliability. (The oaae iu which t?e -;,uestion %%a deoldud 

wae not a tsx suit by thie State for unemployment ttlxes.) 

'*On the basis of the deoioion or tha Federnl court, 

this ~ormtio8fon told the % Company that it wao not an 

onployer during tha period January 1, 1937, Tao December 31, 

lY39, and that the refund application would be gmnted 

with rereroncs to tare8 duo after &larch 31, 1938. This 

was for the reason that the refllnd provision of the Texae 

law, as it existed prior to April 1, 1939, iqcossd a onayuur limitation perlod'ror the filing of npplloatlons. 
. 

*The X corporation 110~ contends t&it since taxes 

duo prior to April 1, 3938, Wro, paid the aommiaeion 

at a time when the n~pllcstlon for refund with reepeat 

to them was barred, n altucrtlon ie Weat which demndo 

that tha statute bo not interpreted to bar recovery of 

suoh taxsa. 

*?ie ahall appreciate your oplnlon an to the correctness or our 

f 

oaition in denying the refund of taxea 

due prior to Apr 1 1, 1938." 

St would seem that o~lniona Numbers O-459 and 

O-1765 have anamred inferentially the question expressed In 

your oplnlon request. Bowever, it 18 now smarted that 4 

differout conoluslon ahould be reached beoauae the oontributlone allegsd to be due for the perfod prior to April 1, 1959, 

were paid in 1940 rather than in that psrlod. In order to 

fully answer thla oontention, we reel that a ahart review of 

the applioable statutes and our previous rulings will be 

profitable. 

Our opinion No. O-459 dealt with a situation where 

the aomnlesion was aeked to rerund ooatrlbutZonr regularly 

paid by the supposed employer which were due prior to one 

year from the data or the ti 

9 

piioatlon therefor. At the date 

of this opinion, Section 12 d) of Artlole 552lb, Ysmon~s 

Annotated Civil Statutes, was in effeot and it reads as folloas: 

"Refunda: fr not later than (1) year altar the 

date on which any oontrlbutions or intereat t!mreon 

~~~*~~t:~~~srl~h~a~~Se~~~~ 5uch yy;p;:;;;,- cntlo~ 

nent thereof In commotion with subsequent coz"&ributio?ipayzmtn, or for R r13ruhd theroor bnofiuso such sdjustmeat 

cannot be xde, anA the Zo.mieeion shall. deternine that 

suoh contributione Or lntcrost or any portion thereor 

wae erroneously collected, the coumlloaion rSnl1 allow 

such enplcym- to rake an HU,jurct.ment thereof, witizout 

lnterast, in connection with subsequent contribution 

pnynents by hix, or if such adjustmant can not be made 

the GomIssriun shall refund said amount, wlthcut interest, 

from the fund. For like cause and wlthin the.samo gcrlod, 

udjutitxent or refund nap be HO mnde on tha Comisslon'o 

own initiatlva.* (!:3;phosls s~~ppllad) 

The Attorney General held that the Comis8ion could 

not leeally refmd contrlbutlons which wero due prior to one 

yam frm ths date of applfca.tion thereror. In the course of 

the optnion 'tie find tho following languagei 

*One of the meet signlfioant provisions of Seotion 

14(d) 1s the phrase 'the date on which say contributions 

or interest thereon became due.' The *due* data rather 

then the Gate of peymont is cortrolling. X0 csstter when 

the oontributions em paid, the one (1) year period of 

limitation apainat refunds beglno to operate in favor of 

t”?o atata ‘after the date on which my contributions or 

intareet t5erocn became due.‘* 
. 

- Based on the same faatual data aubmittbd in Opinfoa 

Fib. I)-459, another opinio,n request rat received by the Attorney 

General in which the main problem wes the effeat of the aaendment of old Section la(d) Lo new Section 12(j), effective 

April 1, 1.939. Althou$h there is some slleht difference fn 

verbiage, the legal effect of both statutrs nppsarf? to be ths 

same, exaeptiug the ahange in tha period of Elmi?ation. Saatlon U(j) 1s still in effect a&d roade as followsr 

*vthere any employing unit has made e payment to 

the Commlaelon of contributions alleged to be due, and 

it i5 later determined that such contributions were 

not due, In whole or in part, the employine unit mnklng 

suah payment may make appllaatton to the Cofm~ineion for 

,an adjustment thereof in connection with contribution 

payments then due, or for a refund tharsof because such 

adjustment oannot be made and ii the Cardsalon shall 

determine ,that such ao~ntributlons or penalty 

portion thereor were erron.eoualy aolleoted, ih?Csiiieslon oha3.1 allow suah employing unit to meke an edjustment thsreof without intereet in oonneation with apntribution payments then dua by such employing unit, or if 

euah adjustment oennot be made, the CWrsfon shell 

refund said amount without interest from the Fund. orovid6a thet no application for adjustment or rerud shall 

Ger be considered by the ~ommlsalon unless the ache 

shall have besn tiled within four (4) years from the 

aats on whiah such contributions or penaltie@ would 

fieve becoua due, had suoh contrlbutlona been legelre 

colleatlble by the ConunlsBion from suoh omploping unit. 

?or like ceuse, and within the WJJU~ period, adjustment 

or refi;nd .~ay be so made on the Comlssionis own inltlative.” (Emphasis supplied) 

The resulting opinion being 710. O-1795, held that 

the new statute had’no retroaatlve terms and that it was intended to be prospective In operation. Consequently the 

claimant gained no new rkghte by the repeal OS old Section 

12(d) and the passage of Eec,tlon 12(J). The holding and 

reasoning in prior opinion No. O-459 was reaffirmed, 2nd the 

suppoasd employer was apaln denied a refund of contributiona 

becoming due prior to one year from tho aat of application 

therefo?. h?.rrin, emphasis was plnced on tb3 fact thet insofar as the beginning of’ the period of limitation wae concerned, 

the due date of the contributions was the controlling factor. 

The Texas Unemployment Compensation Comnisslon has 

uniformly int.erpreted the applicable statutes to mean that the 

limitation period should begin on the date that tb.e oontrlbution become due. See Regulation 30, adopted July ?, 1.837, and 

iiogulstion 39, adopted ;eptembsr 5, 1939. 

Since every opinion by tho .httornsy General and 

every regulation by tLe Cammlsz.lon, doslinG, vrlth the above 

set out atatut&s, have omphsolzed the faot that the beginning 

or the running of the period of limitation is the rlus date 

of the contributions, we are not wlllln~ tc say now that the 

date of psynent Is controlling. Vie do not believe t?at a 

lsgislntlve lntznt to dlf’fersntiqte between, an,! faVor, a 

claimant u.ho has not regularly paid the contributions lllep&ly 

dl;s end one’ ‘*ho has rs~ulnrly paid his taxes, c8n bs ~BRI: into 

the nttltutsn. Cort:<lnly ths oxpr383 t+rns of t!ie nt9tutes 

Involved make no cacti dlatinctlon. 
Tou are, thorsfore, s8virsd that the claim presented by the Y Company has bosn borrsd by ths O&rmk of old 

seotion 12(d), Artiole 522l.b. Vex~on~8 Annotated 01~11 Sktutea, and that ths Stnclllrraion adopted the 6orrWt position 

In denying ths refund of taxI88 dua prior to Apxil 1, 1038. 

Pour8 very truly 

BY 

/a/ ‘Fioodrow Edward8 

A88irtant 

Gerald 0. MOM 

Attorney General of Tsraa 

/