Untitled Texas Attorney General Opinion

TIXEATTOIECNEY GENERAL ~,PTExAS

Honorable Robert S. Calvert Comptroller of Public Accounts Austin, Texas opinion NO. c - 298 Re: Whether the Comptroller of Public Accounta Is Authorized to release the Statels Hotel Occu- p&my tax lien when the a8ount of the'tu liabil- ity claimed by the State has'beeh paid under the' protert statuta6t Dear Mr. Calvert: .~ YOU have requested our opinion on the following question: May the Comptrollerof Public Accounts release, the State's lien,created through the provisions of Article 1.07, Title l22A, Taxation-General, Veinon~s Civil Statutes upon payaent of the Hotel:Occupancjt tax imposed by Chapter 23, Article 23.02,Title 122A, Taxatloh-General, Vernon's C%yil Statutes, upon payment under the protest',statutes, Article 705i'band Article 1.'05of eaid Title 122A, by the tax- payer of the delinquent taxes, penalties end interest claimed by the Comptrollerto be due? ~Artlclel.Om,, Tam&ion-General, Title 122A, provides in part that: I1 ....Satisfactiomof auy state tax lien may be shown by a receipt, acknowledgmentor release ed by a representativeof the estateagency t fil d such lieh, ahd acknowledgedor proved * reco:d as required for deeds." (&aphasi.sAdded).

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Hon. Robert S. Calvert, page 2 (c -,298 )

Since the State Comptrollerof Public Accounts is the State agency which filed the Hotel Occupancy tax lien, it is therefore the agency empowered to Issue the release of said lien. As we have ascertainedthat the State Comptrollerhas the porrer to issue the release of the tax lien, the question for determinationnow becomes under what conditions may the Hotel Occupancy tax lien be released? In the cases of Mllburn v. Athans, 190 SW 2nd 388 (Tex. Clv. App., 1945, error dism.), Klstler v. Latham, 255 SW gg!J Tex.Com.App.1923),Stephens v. Moodle, 30 -0 (Tex.Civ. Lpp. 1895, error ref.), the.courts held that a,lien Is dls- charged by a proper and sufficientpayment of the debt or obli- gation which it secures. Thus, we must determine whether pay- ment of taxes, penalties, and interest under protest will be sufficientto discharge the Hotel Occupancy tax obligation owed to the State of Texas. The protest statutes,Article 705i'b,Vernon18 Civil Stat., utes, and Article 1.053 Taxation-General,Vernon's Civil Stat- utes, provide a statutorymeans whereby a taxpayer might contest any levy of tax or fee which he believes or contends ie unlawful. The statutes provide that the taxpayer is required to pay such amount as the public official charged with the collection thereof may deem to begdue to the State. Article 23.07, Title 122A, Taxation-General,Vernonls Civil Statutes, which provides penalties for being delinquent in reporting and paying the,Hotel Occupancy tax states: '!Ifky person shall failto fil&.a report as required herein or shall fall Copay to the Comptrollerthe tax as imposed heFein when raid report or payment Is due)the shall for- feit five per cent 5s) of the amount due as a penalty, and ai ter the'first,thirty(30) :. dys he shall forfeit an additionaLfive per cent (5$) of such tax. Provided,. however, that the penaltyi'shall never be less than One pollar ($1). Delinquent, taxes shall draw inter- eet atthe rate of six per dent (6%) per annum beginning sixty (60) days from the date due." The civil penalties, imposed by this article and due when payment Is made, are also to be included before a payment under protest $6 a!sufficientpayment toauthorIze a,release of the State's lien.

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We believe that by payment under protest of the entire amount of the taxes, penalties and interest -posed by Articles 23.02 and 23.07, and claimed by the Comptroller,the debt or obligationdue the State is dischargedfor the purpose of obtaining a release from the Hotel Occupancy tax lien. A case which Is quite similar in regard to the stiflclency of the payment of the tax money into a repositorywhich the taxpayer does not control is State v. Hoffman, 109 Tex.133, 201 SW 653 (1918). Under a fact situationwhich is analogous to the one which we presently have here, the Supreme Court upheld the lower court's ruling that payment Into the registry of a court will suffice to extinguishthe State's lien. In that case, the tax assessor-collectorrefused to accept the tender of taxes because penalties were not Included. After the State instituted suit for the~taxes,penalties and inter- est, the~monies sued for were paid into the registry of the court. The Court of Civil Appeals in the ssme case held that, "The lien was extinguishedby the tender, made good by the payment into ths registry of the court...." lgo SW 1163 (1916) The Supreme Court stated, "With this true (tendermaintained through the payment of money into registry of the court), the lien upon the property for the taxes stood discharged,and the court properly refused to foreclose It." (at page 654) We conclude that payment of the tax under protest, penal- ties and interest, as required by the statutes and demanded by the State Comptrollerof Public Accounts, is sufficientdis- charge of the Hotel Occupancy tax obligationto warrant the release of the State's tax lien. Your queation Is therefore' answered in the affirmative. SUMMARY The Comptrollerof Public Accounts is authorleed to release the State’s tax lien created through the provisions of Article 1.07, Title 122A, Taxation- General, when the full amount of the Hotel Occupancy tax, penalties and inter- est demanded by the Comptrolleris paid to the State pursuant to the protest statutes.

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. -Bon. Robert S. Calvert -page4(C-296)

Pow6 very truly WAGGONER CARR Attorney General

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OPMION CT W. V. Geppert, Chairnrn Bill Allen Unward Shiver6 .%alcolmQuick Joe Long APPROVEDF0RTH.E A~Ol?WA7GEWERAL By: Stanta Stone "3

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