### No. 310% Res Date orpayment

## orunemployment oompenratlon tax 

### a8

## 8frectinpthe tollins 0rlimitation undar Artiola SWlb-12(j) Yarnon's Annotated Civil Statutes,

Texaa Unemployment Compenretlon Cos&aslon BrownDuilding Austin, Texas
Gentlemen: 

### Opinion No. O-42618

wehavereceivedand aarerully considered your 

### opinionJ:equest of recent date. In order 

## toruiiyeatout the facts involved, we quote your letter in full:

"This request has reterenoe to the refund providons cf the 

### TexasUnenploymnt Con?ensstlcn.$ct (Article 522lb-12(j), Vernon'e Annotated Civil Stat

## i.muOrn~3a, 193). You have prnvionaly iercued 

### youropinionsWo.O-459onMaroh 17, 1939, and O-1705 onEaroh 7, 1940. Those: two

### opinionsnreoited 

### in your opinion No. O-2183 dated June 13, 1940,
*In the year 1940 the Conrmlaeion esaerted tax liability aGainat Ximpa~y for unsn~lo~rment Taxes ior the period January 1, 1937 through December 31, 1059. 

### XComaanydenied 

### liabilftybutin1940 mid all of the 

### taxeswhichtheCommission claimed were-owing. At 'its time it paid th,eterns 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 

## orthe oorporatlonls contention of nonliability. (The oaae iu 

### whicht?e-;,uestion %%adeoldud
waenot 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 

### duringtha period January 1, 1937, TaoDecember 31, lY39, and that the refund application would be gmnted with rereroncs to tare8 duo after 

### &larch31,1938. 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 

### filingof npplloatlons.. *TheXcorporation 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 themwas barred, n altucrtlon ie Weat which 

### demndo that tha statute bonot interpreted to bar recovery of suoh taxsa.
*?ie ahall appreciate your oplnlon an to the correctness or our foaition 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 18nowsmarted 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, wereel 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 9piioatlon 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 onwhich 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 Rr13ruhdtheroor bnofiuso such sdjustmeat cannot bexde, 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 anHU,jurct.mentthereof, 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 andwlthin the.samo gcrlod, udjutitxent or refund nap be HOmndeon tha Comisslon'o
owninitiatlva.* (!: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 'tiefind tho following languagei

*One of the meet signlfioant provisions of Seotion 14(d) 1s the phrase 'the date onwhich say contributions
or interest thereon became due.' The *due* data rather then the Gate of peymont is cortrolling. X0csstter 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) LonewSection 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&droade as followsr

*vthere any employing unit has madee 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 maymakeappllaatton to the Cofm~ineion for ,anadjustment thereof in connection 

### with contribution payments then due, or for a refund 

### tharsof because such adjustment oannot be made and

## ii theCardsalon shall determine ,that such ao~ntributlons or penalty portion thereor were erron.eoualy aolleoted, ih?Csiiie

### slon oha3.1allow suah employing unit to mekeanedjustment 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 noapplication 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, andwithin the WJJU~ period, adjustment or refi;nd .~aybe so madeon the 

### Comlssionis owninltlative.” (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 newrkghte by the repeal OSold 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 arefund 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 meanthat 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 bytLe 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, weare not wlllln~ tc say now that the date of psynent Is controlling. Viedonot believe t?at a lsgislntlve lntznt to dlf ’fersntiqte between, an,! faVor, a claimant u.hohas not regularly paid the contributions lllep&ly dl;s end one’‘*hohas 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.

### Touare, thorsfore, s8virsd that the claim presented by the YCompanyhas bosn borrsd by ths O&rmkof 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/ ‘FioodrowEdward8 A88irtant



### Gerald 0. MOM 

### Attorney General of Tsraa

/