Untitled Texas Attorney General Opinion ( 1974 )

T~AEA~ORNEY GENERAL
OF TEXAS
Aus-. We, 78711
April 5, 1974
The Honorable Robert S. Calvert Opinion No, H- 274
Comptroller of Public Accounts
State of Texas Re: Authority of cities to
Austin, Texas 78774 collect taxes due under
Article 1066c, V. T. C. S.,
the Local Sales and Use
Dear Mr. Calvert: Tax Act
You have requested an opinion on the following questions:
“Whether any city has authority under Vernon’s
Ann. Civ. Stat. Art. 1066~. common law, or otherwise
to engage in any collection activities, including collec-
tion on a judgment, for tax liabilities that arise under
Vernon’s Ann. Civ. Stat. Art. 1066c, other than joining
as a party plaintiff with the Attorney General in a suit
for collection as provided in Vernon’s Ann. Civ. Stat.
Art. 1066~. Sec. 12, subsequent to a certification of a
tax liability by the Comptroller to the Attorney General
for collection? ”
“In the event any amounts due under Vernon’s
Ann. Civ. Stat. Art. 1066~ are in fact received by a
city, either legally or illegally, is that city required
to either remit the total amount collected, exclusive
of court costs, if any, to the Comptroller or to submit
an accounting to the Comptroller of all amounts so col-
lected? ”
The Limited Sales, Excise and Use Tax Act (Chapter 20. Taxation-
General, V. T. C.S.) was enacted in 1961. The Local Sales and Use Tax Act,
Article 1066c, V. T. C. S., became effective in 1967. It authorizes cities,
towns and villages to adopt a local sales and use tax which is superimposed
on the state sales tax in local, taxable transactions.
p. 1280
,
The Honorable Robert S. Calvert. page 2 (H-274)
We believe that the State Comptroller is the sole party authorized
to collect these local taxes on behalf of the city. Our opinion is based
upon the many provisions in Article 1066~ which contemplate collection
of the local taxes by the Comptroller. The caption to the Act sets out
that it is an act “providing for the administration and collection and
enforcement of such tax by the State of Texas. ” (Acts 1967, 60th Log.,
KS., ch. 36. p. 62). Section 5 of the act provides that “the Comptroller
shall perform all functions incident to the administration, collection,
enforcement, and operation of the tax, and the Comptroller shall collect
. . . an additional tax under the authority of this Act of one percent (1%)
. . . . ” It further states that the local tax and state tax will be “col-
lected together and reported upon such forms . . . . as may be prescribed
by the Comptroller. . . . ” Section 6 establishes provisions which “shall
govern the collection by the Comptroller of the tax imposed by this Act”
and Section 4, establishing an excise tax, states that “the tax imposed
by this Section of this Act shall be collected by the Comptroller on behalf
of and for the benefit of such city. ” (emphasis added)
These provisions clearly show that the Legislature intended that the
State Comptroller be the central collector of these taxes.
The answer to your second question is dictated by our answer to the
first and is governed by the same statutory provisions as those quoted
above. Since the Comptroller is the sole agent authorized to collect the
Local Sales, Excise and Use tax, any such tax collected by a city in any
manner must be paid over to the Comptroller to be deposited in the State
Treasury for the city’s benefit.
In connection with your first question you have referred to $12 of
Article 1066~. V. T. C. S., which provides a convenient procedure enabling
a city to join as a “party plaintiff” in suits brought by the Attorney General
to collect delinquent state taxes when a city tax is also delinquent. How-
ever, this procedure is not exclusive and a city also has a general common
law right to file suit to recover delinquent taxes. Brummer v. City of Gal-
veston, 76 S.W. 428 (Tex. 1903); City of Henrietta v. Eustis, 26 S.W. 619
(Tex. 1894). See also Article 11, 5 $4 and 5 of the Texas Constitution and
Article 962, V. T. C. S.
p. 1281
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, .
.
The Honorable Robert S. Calvert, page 3 (H-274)
SUMMARY
The State Comptroller is the sole collector
of taxes under Article 1066c, V. T. C. S., although
cities may independently file suit therefor, and
any such tax moneys received by cities should be
remitted to the State Comptroller for deposit in
the State Treasury for the cities’ benefit.
APPeCjVED:
DAVID M. KJSNJJAJ
Opinion Committee
p. 1282