Hon. Robert S. Calvert

Comptroller. ofPublic 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 anopinion 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 ofPublic Accounts under the now unconstitutional “gas gathering tax.” (Article ,7057f, Vernon’s Civil **Statutes)** The monies collected were placed ‘* by the Comptroller inthe “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 upby 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 ofArticle 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 tohave the tax payments refunded by virtue ofArticle 4388, V.C.S.

We are of the opinion that once the taxpayer abandons its rights **under** Article 7057b, the tax monies inthe 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 donot 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 tobe placed in suspense, or (2) the head of the collecting department cannot determine the status offunds paid without protest to the State.

Article 4388 permits State departments todeposit collected monies ofundetermined status into the suspense account. Upon the determination of the status ofthese monies by the department head, the portion belonging to the State is deposited into the Treasury and the‘balance’ is refunded tothe proper party.

The protest statute (Article 7057b), enacted subsequent to .Article 4388, permits aprotesting taxpayer the right to institute suit agiifnst the State; it requires that the tax monies be placed inthe suspense &+ount and should the protesting taxpayer prevail the monies must be re- .fur@ed. Section 7ofArticle 7057b reads as follows:

,u The provisions of this law shall be cumulative of all laws relating to the payments oftares or fees of undetermined status and for theholding ther,eof inthe suspense account fund .of’the State Treasnrer.” The above quoted language reveals that the protest **statute** does not pre-, elude the relief towhfch thetaxpayer 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 ofmonies inthe “suspense account” ofthe State Treasurer, upon a determination by the Comptroller that the monies donot 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