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Office of the JZlttornep @emal Bbtate of Qexas DAN MORALES ATTORNEY GENERAL April 27,1993 Honorable Ben W. Childers Opiion No. DM-220 Fort Bend County Attorney 309 South Fourth St., Suite 621 Re: Whether the Fort Bend County Tax Richmond, Texas 77469 AssessorK!oUector may collect additional taxesforchangeofuseofagriadturallandin light of the 1989 amendment to section 23.55(e) of the Tax Code (BQ-325) Dear Mr. Childers: You have requested an opinion regard@ the authority of the Fort Bend County Tax AmeasoKoLlector (the “tax assessol/couect~) to wllect certain additional’taxes in light of a 1989 amendmentto section 23.55(e) of the Tax Code. Subchapter D of chapter 23 of the Tax Code per&ins to the appraisal of a@‘kdtural land. Section 23.55 of the Tax Code sets forth the tax adjustment procedures that apply in the event of a change of use of agricultural land. The pertinent provisions of section 23.55 are as follows: (a) Iftheuseofkndthathasbanappraisedasprovidedbythis subchaptachangts,anadditionaltaxisimposedonthelandequalto thediffaencebaweenthetaxesimposedonthelandforeachofthe iiveyearsprecedhqtheyearinwhichthechangeofuseoccursthat thelandwasappraisedasprovidedbythissubchapterandthetax thatwouldhavebeenimposedhadthelandbeentaxedonthebasis of market value in each of those years, phrs interest an annual rate of seven percent calculated from the dates on which the differences would have become due. (b) AtsxLienanachestothelandonthedatethechangeofuse occurs to secure payment of the additional tax and interest imposed by this section and any penalties incurred. The hen exists in favor of all texing units for which the additionaltax is imposed. (c) The additional tax imposed by this section does not apply to a year for which the tax has already been imposed. 'Yoo ldb lo theseaddiliooallaxcsas -mllw= taxes p. 1152 Honorable Bar W. Childers - Page 2 (DM-220) (d) IfthechanBeofuseappU~toonlypartofapPrcelthatha9 beenappraisedasprovidedbythis&&apter,theadditionaltax apptiesonlytothatpartoftheparcdMdequatsthediff`` behveenthetaxesimposedonthatpartoftheparcelandthetaxes thatwouldhavebeenimposedhadthatpartbeentaxedonthebasis of market value. (e)Adekrmi&onthatachangeinuseofthelandhas ouxrredismadebythechiefappraiser. Thechiefappraisershall deliver a notice of the dekrm&tion to the owner of the land as soon as possible after making the dcmmiation and shall include in the notice an explanation of the ow&s right to protest the detamdion. If the owner does not file a timely protest or if the 6nal determktion of the protest is that the additional taxes are due. theassessorforeach~unitshallprepareMddelivaabillfor the additional taxes plus interest as soon as practicable. The taxes audintexstaredueandbecomedekquentandincurpenaltiesand intaestasprovidedbylawforrdvalorrmtaxesimpo~bythe tslriagunitifnotpaidbcforethenadFcbruarylthatisatleast20 &ysaftathedatethebillisdelivaedtotheownaoftheland. Subsection(e) of section 23.55 was amended in 1989. See Acts 1989,7lst Leg., I&. 7%. 5 20, at 3598. The amendment had an e&tive date of Septenkr 1, 1989. See
id. 8 49(a).prior to that date, subsection (e) provided es follows: The assesor shall prepare and deliver a smtemem for the additional taxes plus interest es soon as practicable after the change ofuseoccurs. Thetaxesandinterestaredueandbecomedelinquent ``~tiesMdintaestuprovidedbylawforrdvalorem taxesimposedbythetaxingunitifnotpaidbeforeFebnrary 1 ofthe yearaikrtheyeerinwhichthechangeofuseoccurs. See Acts 1981, 67th Leg., 1st C.S.. ch. 13. 5 71, at 145. The amendment to subsection (e) not only shitkd the authority to determine that a change of use of land has occumd fromthetax assessor/collector to the chief appraiser, but also changed the date on which the additional taxes are due end become delinquent end incur penalties end interest fkom “February 1 of the year al&r the year in which the change of use occurs” to “the next February 1 that is at least 20 days after the date the bill is delivered.” Conrpme Acts 1981. 67th Leg.. 1st C.S., ch.l3,§ 71 wiih Acts 1989.71s Leg.. ch. 7%, 5 20. According to your query, in 1984 the tax assessor/collector calculated additional taxes for change of use of land for a particular landowner for several past tax years. On September 1. 1989, the amendment to subsection (e) went into e&c& transferring the p. 1153 Honorable Ben W. Childers - Page 3 (DM-220) autho&ytodetemioethatachmgeofuseoflandhasoccumdfiomthetax assessork&ctor to the chief appraiser of the Fort Bend Central Appraisal District. As of thatdat~theadditionaltmscalculatedbythetax asesorMkctor had not been paid. You state that thereafter “[t]he Fort Bend Central Appraisal District used August 8,199O for the date of the use change allowing the tax office to only collect rollback taxes for 1984.* You ask whether the tax assessorkollector has the authority to collect the additional taxes fix the past tax years prior to 1984. The amendmentto subsection (e) was not enacted with a savings clause. See Acts 1989,71st Leg., ch. 796, 8 49, at 3606. Therefore, its construction should be guided by the geoeral savings provision rretforth in section 3 11.031 of the Code Construction Act. See M Code 5311.031; Tax Code F,1.03 (Code Construction Act applies to the wnstruction of Tax Code except as othenvk expressly provided). Section 311.031 providesthatMamendmenttoastatutedoesnotaffeaanyprioractiontakenunderthe m or any liabii previously accrued under it. Id 5 311.031(a)(l), (4). Therefow thameadmenttosubseaion(e)wouldnotimralidateatlyprioraction``bythetax asessorMkctor under that provision or exti@sh en exkting Uabilhy for additional taxesowedasaresultofachangeofuseofland. In addition, section 3 11.03l(a)(4) provides that the amendment of a statute does not a&t “any ugation, procadin& or remedy concerning my privikgc, ot&&-m, liability penalty, forfeiture, or punishment.” The investigation proceed& or remedy may he “insthut~ wntinu#l, or enforced, and the penalty, forfehure, or punishment impos4asifthestaMehadnotbeul... amended.” Goti Code 5 3 11.031(a)(4); see ah &indlefcp Oil and Gas Co. v. Parker Comgv,
738 S.W.2d 715.720 (Tex. App.- Fort Worth 1987. writ denied). Therefore, the prmrisions of the pre-amendment version of subsection (e) will continue to apply to any proc&iq to collect additional taxes instituted prior to the dfective date of the amendment? Under the praamendment version of subsection (e), a proceeding to collect additional taxes would have been p. 1154 Honorable Ben W. Childers - Page 4 (Dt+220) insthuted by delivering “a statement for the additional taxes plus interest” to the landowner. Ifthetax assessor/wllector did not deliver “a statement for the additional taxes plus interest” prior to the e&tive date of the amendment, however, the new provisions will apply, evw though the change of use ocwrred prior to the etktive date. On the basis of the foregoing principles, we conclude that the tax assessor/wUector has the authority to collect the additional taxes under the pre- amendment version of subsection (e) if prior to the etfective date of the amendment, i.e., hefore September 1.1989, she sent the landowner a statement for additional taxes and interest in accordance with that provision. As of the e&ctive date of the amendmen&the authoritytodetaminethatachangeofuseoflandhasoclcurredand~tonotifjrthe landowner of the detmmination &i&d to the chief appraiser. In addition, the date on which the additional taxes are due and become delinquent and incur penalties changed. If the tax assessor/wUector did not send the landowner a statement for additional taxes and interest in accordance with the pm-amendment version of subsection (e) prior to September 1, 1989, then the current version of that provision govems. Only the chief appraisawouldbe~tod~ethatachangeofuseoflandhas~aad thetaxeswouldbedueonthenextFebnrarylthatisatl~20daysaftathedatethebill is ddivered. Moreover, in that case, the tax assessor/wllector would not be authoriaed to wllect any additional taxes based on a change of use of land absent the chief appraiser% determination, even ifthe change of use of land owutred prior to September 1.1989. There appears to be some question here whether the tax assessor/wllector act&y sentthelandownaastatanentforadditionaltaxesandiramstinaccordancewiththe pm-amendment version of subsection (e) prior to Septenkr 1.1989. You state that “[i]n Febmary of 1984, rollhack taxes were calculated for [the landowner] and mailed by a Fort Bend County Tax Research Clerk. During that time period rollback taxes were calwlated at the request of the @andowner].” You also state that in 1989 a representative of the landowner “acknowledged receiving the rollback taxes calculated by the tex office in 1984.” Apparentty, “[t]he [tax assessor/wUector] believes that because [the landowner] was given notice of the change in land use and acknowledged same prior to the 1989 amendment, she has the authority to wkct the rollback taxes.” The determination whether the wmmunication sent to the landowner in 1984 and the landown~s alleged acknowledgement of that wmnnmication in 1989 satisfy the pre-amendment version of subsection (e) would require the resolution of fact questions. We cannot resolve t&t questions in an attorney general opinion, Attorney General Opiion JM-495 (1986), and are the&ore unable to provide a detinitive response to your query. SUMMARY The 1989 amendment of section 23.55(e) of the Tax Code shifled the authority to determine that a change of use of agricultural land has occurred and to notify the landowner of the determiwtion from the Fort Bend County tax assessor/wUector to the chief p. 1155 Honorable Ben W. Childas - Page 5 (DM-220) appraiser of the Fort Bend Central Appraisal District. The tax assessor/wUector has the authority to wllect thcadditional taxes at issue pursuant to the pre-amendmentversion of section 23.55(e) only if the tax assessor/wllector sent the landowner a statement for additional taxes and interest prior to September 1,1989, the elbtive date of the amendment. DAN MORALES Attorney Oeneral of Texas WILL PRYOR FiiASSiSWAttOfllCyGenenl MARYKBLLER Deputy Attomey Oeneral for Litigation RENEAHJcm State Solicitor MADELEINE B. JOHNSON chair, opiion committee p. 1156
Document Info
Docket Number: DM-220
Judges: Dan Morales
Filed Date: 7/2/1993
Precedential Status: Precedential
Modified Date: 2/18/2017