Hon. Robert S. Calvert 

Comptroller. of Public Accounts 

Capitol Station 

Austin, Texas 

Opinion No. S-130~ 

Re: 

Dear Mr. Calvert: 

Authority to refund monies under Article 

4388, V.C.S., when the monies were paid 

to the State pursuant to the protest.statute 

Article 7057’b, V.C.S.. and the protesting 

taxpayer failed to observe the requfrements of the protest statute. 

.~ You have. re+zested an opinion of this office, and the tiiter bask 

re,stated the facts and the question, as he knows them to exis!, as fottows: 

The Coleman Gas Company made protest tax payments to the Comptroller of Public Accounts under the now 

unconstitutional “gas gathering tax.” (Article ,7057f, Vernon’s Civil Statutes) The monies collected were placed ‘* 

by the Comptroller in the “suspense account.” The gas 

company properly instituted’the suit within ninety days 

after the protest payment; however, two subsequent tax 

payments were not properly set up by amendment to the 

petition. The gas company. recognizing it could not tecover these payments pursuant to the&ptotest statute, 

dismissed its suit as to these two subsequent tax payments and requested the Comptroller to refund these 

monies by virtue of the provisions of Article 4388, V.C.S. 

All the monies paid under pr%%t~have remained in the 

“suspense account.” 

The question is whether’s taxpayer initially pursuing his 

remedy under Article 7057b, V.C.S., may abandon such a suit and seek 

to have the tax payments refunded by virtue of Article 4388, V.C.S. 

We are of the opinion that once the taxpayer abandons its 

rights under Article 7057b, the tax monies in the suspense account become subject to the discretionary action of the Comptroller of Public 

Accounts to determine the monie~s’ status. Therefore, should the 

Comptroller determine that the monies do not belong to the State a refund should be made to the proper party as authorized by Artide 4388. 
Hon. Robert S. Calvert, page 2 (S-130) 

There exists only one “suspense account” administered by the 

Treasury Department. Tax funds are deposited into this account for one 

of two reasons: (1) either the funds were paid under the protest statute 

and are required by law to be placed in suspense, or (2) the head of the 

collecting department cannot determine the status of funds paid without 

protest to the State. 

Article 4388 permits State departments to deposit collected 

monies of undetermined status into the suspense account. Upon the determination of the status of these monies by the department head, the portion 

belonging to the State is deposited into the Treasury and the ‘balance’ is 

refunded to the proper party. 

The protest statute (Article 7057b), enacted subsequent to 

.Article 4388, permits a protesting taxpayer the right to institute suit 

agiifnst the State; it requires that the tax monies be placed in the suspense 

&+ount and should the protesting taxpayer prevail the monies must be re- 

.fur@ed. Section 7 of Article 7057b reads as follows: 

,u The provisions of this law shall be cumulative of all 

laws relating to the payments of tares or fees of undetermined 

status and for the holding ther,eof in the suspense account fund 

.of’the State Treasnrer.” 

The above quoted language reveals that the protest statute does not pre-, 

elude the relief to whfch the taxpayer might be entitled under Article 4388. - 

SUMMARY 

Upon abandonment of a suit instituted under Article ,.~~ 

7057b, V.C.S., thereby withdrawing from the Court’s 

jurisdiction the authority to determine the status of the .~ ’ . 

tax monks paid under protest, the taxpayer may have a 

refund of monies in the “suspense account” of the State 

Treasurer, upon a determination by the Comptroller that 

the monies do not belong to the State. 

APPROVED: Yours very truly. 

L. Pi Lollar JOHN. BEN SHEPPERD 

Taxation Division Attorney General 

John Atchison 

Reviewer 

J. A. Amis, Jr. 

Reviewer 

John Ben Shepperd 

Attorney General 

William W. Guild 

Assistant