Untitled Texas Attorney General Opinion ( 1960 )

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AUXTX-IN 1%. TEXAB
W’ILL WILSON
A-- GENERAL
June 15, 1960
Honorable Robert S. Calver,t Opinion No. hW-847
Comptroller of Pub1ic Accounts
Cavltol Station Re: Application of Art. 1.11,
Austin, Texas Title 122A, R.C.S;, to an
overpayment of taxes which
occurred prior to the
effective date of such
Dear Mr. Calvert: article.
Recently you requested our opinion upon the interpre-
tation of Art. 1.11, Title 122A, R.C.S., providing that
where an overpayment of tax has occurred the taxpayer may
elect to have the overpayment credited to his tax account
with the State, in lieu of pursuing any other remedy.
Specifically, you inquired whether or not this provision
would be applicable to the full amount of overpayment of
gross receipts taxes made by Industrial Gas Supply Corpora-
tion, Houston, Texas, during the period November, 1950, through
December, 1959, or only applicable to the ,porti.onof taxes
overpaid on and after September 1, 1959, the effective date
of the Article (Sec. 8).
It is our opinion that the article may only operate
upon that portion of tax overpaid on and after September
1, 1959.
In State v. Humble Oil & Refining Co., 141 Tex. 40,
169 S.W.2d 707 (1943), a parallel question was posed. There,
Humble had overpaid the gross production tax on oil prior to
May 30, 1935. The 44th Legislature enacted a tax credit
provision, very similar to the one here involved, allowing
an offset for overpayment of taxes, the provision becoming
effective on May 30, 1935. Humble contended that it could
creoit .itsprior overpayment against taxes due for the month
of January;lg36, while the State contended that the law
could.have no such retroactive effect. Judgment was for
Humble in the trial court and was affirmed by the Court of
Civil Appeals. In reversing both courts and renderlng judg-
ment for the State, the Supreme Court said
"After a very careful examination
of the authorities, we have reached
the conclusion that the above-quoted
statute cannot be applied retrospec-
Honorable Robert S. Calvert, Page 2 Opinion No. ``-847
tively. It is the law of this State,
and the law generally, that, in the
absence of any special indication or
reason, a statute will not be applied
retrospectively, even when there is no
constitutional impediment against it.
Stated in another way, it is the rule
that statutes will not be applied retro-
spectively unless it appears by fair
implication from the language used that
it was the intention of the Legislature
to make it applicable to both past and
future transactions. citing authoritiefl
When we apply this rule to this statute,
we find no words contained therein which
indicate a legislative intent to apply
its provisions to past transactions."
We believe that this holding forecloses any possibility
of interpreting Art. 1.11 so as to allow credit in this case
for overpayments occurring prior to September 1, 1959.
SUMMARY
Art. 1.11, Title 122A, R.C.S.,
providing that overpayments of taxes
may be credited to the taxpayer with
his consent in lieu of other remedies
available, cannot apply to overpayments
occurring prior to September 1, 1959,
the effective date of the Act.
Yours very truly,
WILL WILSON
Attorney General of Texas
JRI:cm
ames R. Irion
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Fred B. Werkenthin
C. K. Richards
L. P. Lollar
Jerry H. Roberts REVIEWED FOR THE ATMRNEY GENERAL
By: ,LeonardPassmore