Untitled Texas Attorney General Opinion ( 1945 )

TIEE ATTORNBY GENERAL
OF TEXAS
Auerrx~ ai,THgAa
This Opinion
ModifiesOpinionsO-5270 &
o-5937
HonorableS. K. Long
CountyAttorney
JeffersonCounty
Beaumont,Texas
D6ar Sir: OpinionBumbsrO-6765
Re: Allocationof money reoeived
from governmentaldepartmentsand
agenciesas "paymentsin lieu of
taxes.'
You requestthe opinionof this departmentupon the questionpre-
sented in your letter of August 14, whiohwe quote as follows:
"A questionhas arisen as to the propsr applicationsnd the breakdownof pay-
ments made by the governmentor departmentsof the governmentin lieu of tax-
es, both state end county. It is my opinionthat this paymentis handledthe
ssme as taxes snd should be broken down and appliedto the proper funds as if
it were the direct ad wlorau tax.
"The authorityfor the paymsn t is Seotion 1546 of Title 42 of the United
States Code Annotated,there being no court deoisionthat I have been able
to find other than the Moore et al vs. Board of Educationof Ruolid City
School District,57 N. E. (2d) 116, dealingwith the meaning of 'in lieu.1
Briefly,your questionis: How shouldpymentr made by Federal
housingauthoritiesand similarFederalagenciesin lieu of taxes be allooa-
ted by ths taxing units, recipientsof such payments?
The questionyou present is clarifiedsomewhatby Senate Bill
No. 61, pssed by the 49th Legislature,which is as follows:
'Section1. That all monies, funds, assets,or gifts authorizedby Federal
statuteto be pid to the State of Texas in lieu of taxes or as a gift by
the FederalPublic HousingAuthorityor sny other Federalagency. bs and
the same is hereby acceptedby the Stats of Texas; that this acceptanceap-
plies to any such tenders, gifts, or offers,whether they be mad? in the
pest, present,or future.
"S6ction2. The Comptrollerof PublicAccounts is hereby dirsatedand au-
thorizedto executesuch instrumentsas may be proper or necessaryto ef-
fect aocsptanoeof suchmonies, gifts, or assets,and when so received by
the Comptroller,he shstlldeposit ssme in the State Treasuryto the credit
of the General RevenueFund.
"Sec. 3. The Comptrollermay directthat such monies, when so paid by the
FederalHousingAuthority,be remittedthrough the County Tax Assessor-Col-
lector in the Countywhere lands are locatedon which the paymmt or tender
is made in lieu of taxes by such Federalauthority,and requirethe Tax
Assessor-Colleotor of such Countyto make remittanceto the State Treasury
in the ssmemanner as he is now requiredto do *en rmitting for ad valor-
em taxes: but in no event shall any Tax Assessor-Collector or any other
County or State officialbe entitledto any fee for servicesin handling
these funda."
It is si@ifioant to note that said Senate Bill NJ. 61 treats
such paymentsin effect as ad valorsmtaxer. We think the conclusionis
obviousthat since such paymentsare made in lieu of ad valorantaxes, the
allocationshouldbe to the respectivefunds to which the ad valorem taxes
upon said propertywould be allocatedas providedby law, the sams as the
taxes would be if collectedinsteadof a sum in lieu thereof.
If the conclusionswe here express appear to be inconsistent
with tso prior opinions of this department,DOS. O-5937 snd o-5270,the
paasege by the 49th Legislatureof Senate Bill No. 61, occurringsubse-
quent to these tvm opinions,render these inoonsistencies of no consequence.
Taxes are not gifts, but a sovereie;n
exactionupon citieensor propsrtyto
supportthe Goverwent, and is paymentexaotedby legislativeauthority. If
paymentsare made B Congressionalconsent in lieu of taxes upon property,
otherriseimmune except for such consent,we see no reason for treatingsuch
paymentsin any other manner than would be accordedthe taxes on the proper-
ty. If appropriationof public funds or propertyis for 9 public purpose,
and we think the paymentsin questionhere fall in thet classification,
there is no gift, Almeda Count v. Jannsen,106 Pac. (2d) 11; Los Angeles
Countyv, LaFuente,129 Pao. (23 576; 8an BernardinoCountyv. Ray, 117 Pac.
(26) 354; HousingAuthorityof Los Angeles 0Nnty v. Dockmailer,94 Pet. (2d)
794.
Sumnarizing,we hold that paymentsby Federalhousing authorities
and other similarFederalagencies,made in lieu of taxes, should bs treated
as such smd allocatedas other ad~valmem taxes when paid to the collecting
officialschargedunder the law of collectingthe same.
Very truly yours,
AlTOR?IBYGBt?ERALOFTFXAS
By /s/L. P. Lollar
L, P. Lollar
Assiwtent
APPROVED .WP 12, 1945
/a/ GFtOVEFt
SELLERS Approved
ATTORNEYGENERAL OF TEXAS Opinion Committee
By F. D.
LPL/JCPgegw chpirmen