Untitled Texas Attorney General Opinion ( 1969 )

HE ATTCBWNEW GENERAL
XAS
Honorable Robert S. Calvert Opinion No.M-418
Comptroller of Public Accounts
Capitol Station Re: Construction of H.B.
Austin, Texas 1158, Acts of the 61st
Legislature amending
Section (9), Article 7.08,
Title 122A, Taxation-
General, relating to
payment for cigarette
stamps.
Dear Mr. Calvert:
You have requested our opinion concerning the effect of
H.B. 1158 on the availability of money received in payment for
cigarette stamps and meter settings during the month of August.
Section (9), Article 7.08, Title 122A, Taxation-General, as
amended by H.B. 1158, provides in part as follows:
"The State Treasurer shall require that payment
in full for stamps or meter settings be made within
fifteen (15) days from the date the stamps or the
set meter are received by the distributor. In each
fiscal Year, payment for stamps and meters received in
Auqust of that year shall be paid in full on or before
Auqust 31 no matter when purchased or received by the
distributor durinq that month." (Emphasis added.)
In Muldrow v. Texas Frozen Foods, Inc., 157 Tex. 39, 299
S.W.2d 275 (1957), the Supreme Court of Texas held that taxes
were not paid to the State until the tax money becomes available
to the State.
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Honorable Robert S. Calvert, page 2 (M-418)
Section (9) of Article 7.08 requires in each fiscal year
that payment for cigarette stamps and meter settings received
in August of that year to be paid in full on or before August 31
regardless when purchased or received by the distributor during
that month. These provisions are mandatory. In view of the
holding in Muldrow v. Texas Frozen Foods, Inc., supra, money due
the State must become available to the State during the fiscal
year in which the cigarette tax stamps and meters are received
by the distributor.
This mandatory provision was apparently provided by the
Legislature for the reason that Section 49a of Article III of
the Constitution of Texas provides:
"From and after January 1, 1945, no bill containing
an appropriation shall be considered as passed or be
sent to the Governor for consideration until and unless the
Comptroller of Public Accounts endorses his certificate
thereon showing that the amount appropriated is within
the amount estimated to be available in the affected
funds." (Emphasis added.)
Therefore, the provisions of Section (9) of Article 7.08
above quoted, requires all revenue to be available to the State
during the fiscal year when cigarette tax stamps and meters
are received by the distributor.
You are therefore advised that Section (9) of Article 7.08,
Title 122A, Taxation-General, Revised Civil Statutes of Texas,
1925, as amended by H.B. 1158, Acts of the 61st Legislature,
1969, requires that payment for cigarette tax stamps and meters
received by the distributor during the month of August shall be
paid in full to the State Treasurer before the end of the fiscal
year.
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Honorable Robert S. Calvert, .page 3 (M-418)
Article 1.13, Title 122A, Taxation-General, referred to in
your request has no application to monies due under the provisions
of Section (9) of Article 7.08 for the reason that Article 1.13
applies to reports and paymenisto be remitted to the Comptroller
of Public Accounts, while Section (9) of Article 7.08 applies
to monies to be paid to the State Treasurer.
Accordingly, all monies due for cigarette tax stamps and
meters received by the distributor during August must be
considered as revenue available to the State within the meaning
of Section 49a of Article III of the Constitution of Texas during
that fiscal year for the reason that such monies are required to
be paid in full before the end of the fiscal year.
SUMMARY
Section (9) of Article 7.08, Title 122A,
Taxation-General, Revised Civil Statutes of
Texas, 1925, as amended by House Bill 1158, Acts
of the 61st Legislature, 1969, requires that
payment for cigarette tax stamps and meters re-
ceived during the month of August shall be paid
in full before the end of the fiscal year and
all monies due for cigarette tax stamps must be
considered as revenue available to the State
during the fiscal year.
.,
Attorney General of Texas
Prepared by John Reeves
Assistant Attorney General
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Honorable Robert S. Calvert, page 4 (M-418)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Louis Neumann
R6bert Crouch
Roland Allen
John Grace
Terry Goodman
John Banks
HAWTHORNE PHILLIPS
Executive Assistant
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