Untitled Texas Attorney General Opinion ( 2007 )

GENERALOF TEXAS
ATTORNEY
GREG A B B O T T
May 24,2007
The Honorable C.E. "Mike" Thomas, I11 Opinion No. GA-0548
Howard County Attorney
Post Office Box 2096 Re: Authority of a local taxing unit to waive
Big Spring, Texas 7972 1-2096 penalties and interest on taxes that became
delinquent as a result of an act or omission of an
officer, employee, or agent ofthe appraisal district
(RQ-0555-GA)
Dear Mr. Thomas:
On behalf of several local taxing units you ask the following question:
May local taxing units waive penalties and interest pursuant to
Property Tax Code Section 33.01 1 (or any other provision of the
Property Tax Code) on delinquent ad valorem taxes which became
delinquent as a result of an act or omission of an agent of the
appraisal district, which were paid in full (including all accrued
penalties and interest) within 21 days after the taxpayer knew or
should have known of the delinquency, when a written request for
such waiver was received within such 21 day period, but not within
the 181st day after the delinquency date?'
Your request relates to a specific property, which is subject to ad valorem tax by four political
subdivisions. See Request Letter, supra note 1, at 1. The tax assessor for each taxing unit is required
to mail tax bills to persons in whose names property is listed by October 1 or as soon thereafter
as practicable. See TEX.TAXCODEANN. $ 31.01(a) (Vernon Supp. 2006). Subject to narrow
exceptions, "taxes are due on receipt of the tax bill and are delinquent if not paid before February
1 of the year following the year in which imposed." Id. 5 3 1.02(a). If a tax bill is mailed after
January 10, the delinquency date will be postponed until a certain date after the date of mailing to
allow for paying the taxes before they become delinquent. See id. $ 31.04(a). But if no bill is mailed
to the taxpayer because his address is unknown, the February 1 delinquency date will still apply. See
Aldine Indep. Sch. Dist. v. Ogg, 122 S.W.3d 257,274-75 (Tex. App.-Houston [lst Dist.] 2003, no
'Letter from Honorable C.E. "Mike" Thomas, 111, Howard County Attorney, to Honorable Greg Abbott,
Attorney General of Texas, at 1 (Nov. 15, 2006) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable C.E. "Mike" Thomas, I11 - Page 2 (GA-0548)
pet.) (citing Tex. Att'y Gen. Op. No. JM-1192 (1990) at 8); see also TEX. TAX CODEANN.
§ 3 1.01(g) (Vernon Supp. 2006) (failure to send or receive the tax bill required by section 3 1.01
"does not affect the validity of the tax, penalty, or interest, the due date, the existence of a tax lien,
or any procedure instituted to collect a tax"). Tax Code section 33.01 provides for penalty and
interest on delinquent taxes. See TEX.TAXCODEANN.5 33.0 1 (Vernon 2001).
You inform us that taxes became delinquent on the property in question for the years 2003,
2004, and 2005 as a result of an act or omission by an agent of the appraisal office. See Request
Letter, supra note 1, at 1. The taxpayer became aware of the delinquency on or about October 15,
2006, and paid under protest the delinquent taxes for all three years, including all accrued penalty
and interest, on October 30,2006. See id. at 1-2. The taxpayer included with the payment a written
request for a waiver of penalties and interest. See id. at 2. You ask whether Tax Code section
33.0 11 may authorize the taxing units to waive penalties and interest. See id. at 1-2. This provision
states in part:
(a) The governing body of a taxing unit:
(1) shall waive penalties and may provide for the waiver of
interest on a delinquent tax if an act or omission of an officer,
employee, or agent of the taxing unit or the appraisal district in which
the taxing unit participates caused or resulted in the taxpayer's failure
to pay the tax before delinquency and if the tax is paid not later than
the 2 1st day after the date the taxpayer knows or should know of the
delinquency[.]
TEX.TAXCODEANN. § 33 .011(a)(l) (Vernon Supp. 2006); see also id. 5 33.011(b) (waiver of
interest and penalties if a tax bill is returned undelivered to the governmental body, subject to
additional conditions), (h) (waiver of interest and penalties if a tax payable by electronic funds
transfer was delinquent because of an error in the transmission).
The section 33.01 1 waiver provisions are, however, subject to the following limitation:
A request for a waiver of penalties and interest under
Subsection (a)(l), (b), or (h) must be made before the 181st day after
the delinquency date. . . . To be valid, a waiver ofpenalties or interest
under this section must be requested in writing. I f a written request
for a waiver is not timely made, the governing body of a taxing unit
may not waive any penalties or interest under this section.
Id. 5 33.01 l(d) (emphasis added). The italicized language of section 33.01 1(d) was adopted by an
act of the Seventy-ninth Legislature that included the following transition clause:
Section 33.01 1, Tax Code, as amended by this Act, applies
only to a request for a waiver of penalty or interest made on or after
The Honorable C.E. "Mike" Thomas, I11 - Page 3 (GA-0548)
the [September 1, 20051 effective date of this Act. A request for a
waiver made before the effective date of this Act is governed by the
law as it existed immediately before the effective date of this Act, and
the former law is continued in effect for that purpose.
Act of May 29,2005,79th Leg., R.S., ch. 1126,s 29(g), 2005 Tex. Gen. Laws 3717,3730. See also
id. § 15, at 3723 (amending Tax Code section 33.01 l(d)); id. 30, at 373 1 (effective September 1,
2005).
Section 33.01 l(d) of the Tax Code, as amended in 2005, applies to the taxpayer's written
request for a waiver of penalties and interest made on October 30,2006. See id. 29(g), at 3730.
You have stated that the taxpayer's written request for a waiver of penalties and interest was not
made before the 181st day after the delinquency date for each of the three years in which taxes were
delinquent. See Request Letter, supra note 1, at 2. The plain language of section 33.0 11(d) compels
us to conclude that the taxing units may not waive penalties or interest on the delinquent taxes.
You ask whether any other statute or constitutional provision authorizes taxing units to waive
the penalties and interest on this account. See id. at 1-2. Because you provide no specifics about
the act or omission causing the taxpayer's failure to pay his taxes on time, we will answer your
questions in general terms.
We note initially that a taxpayer is charged with knowledge of the law. See Mexia Indep.
Sch. Dist. v. City of Mexia, 133 S.W.2d 118, 121 (Tex. 1939); see also Texaco, Inc. v. Short, 454
U.S. 5 16, 532 (1982) (property owners are especially charged with knowledge of laws relating to
taxation). Moreover, a political subdivision may not waive penalties and interest imposed by statute
absent statutory authority. See Tex. Att'y Gen. LO-93-58, at 2 (special district may not waive
penalties and interest due on delinquent taxes); see also Tex. Att'y Gen. Op. No. JM-74 (1983)
at 2 (appraisal district may not waive penalties and interest imposed upon taxing units that are
delinquent in paying their share of the district's expenses). Tax Code section 41.41 entitles a
property owner to protest certain actions before the appraisal review board, including "any other
action ofthe chief appraiser, appraisal district, or appraisal review board that applies to and adversely
affects the property owner," and section 41.41 1 authorizes a property owner to "protest before the
appraisal review board the failure of the chief appraiser or the appraisal review board to provide or
deliver any notice to which the property owner is entitled." TEX.TAXCODEANN. $8 41,41(a)(9),
.411(a) (Vernon 2001). A notice of the protest must be filed with the appraisal review board
according to the applicable deadlines of section 41.44. See id. 41.44 (Vernon Supp. 2006); see
also id. 5 41.44(c) (notice of protest authorized by section 4 1.411 must be filed before the date when
the taxes become delinquent). Whether any remedies are available to a particular taxpayer depends
on the facts of that case.
The Honorable C.E. "Mike" Thomas, I11 - Page 4 (GA-0548)
S U M M A R Y
Tax Code section 33.0 11 requires a taxing unit to waive
penalties and authorizes it to waive interest on a delinquent tax if the
taxpayer's failure to pay the tax before delinquency resulted from an
act or omission of an officer, employee, or agent of the taxing unit or
the appraisal district in which the taxing unit participates and if the
tax was paid not later than the 21 st day after the date the taxpayer
knew or should have known of the delinquency. Section 33.01 1
requires such a request for a waiver of penalties and interest to be
made before the 181st day after the delinquency date.
Very truly yours,
~tton&&dneral of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee