Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
QSRAWC. MANN
r--u‘
Honorable Ceorg Ii.Sheppard, Page 2
Upon mmh refuea]:the Stuarda brought su.$te&n& the Tax
Colleetor to cbtdn a writ of mandnmus aommandlng the Tax
Colleotor to reosive the amount 80 tendered. The writ mm
denled cad the deoislonof the trial aourt was airlxmd.~
The Court held that under the 8tatute the State Comptroller*s
regulatlonm requiring Tax Collootora to return to aooept taxes
tendered althout the poll tax on the tax payer’s uiXe was a
valid regulation. The Court ln said ease, speakl~ through
Chler JuuotloeConner, eaid rurtlmr:
*The racte here ahaw without dispute under the Conatl-
tution and lawe'thet the entire tax asse8ead @alaat and
due frcm the rdatorm, 3. B. stuard and tire, use $l.rn.
more than the amount of taxes he tendered to the Colleotor,
and It is a very ramM.ar prlno%pal announce6 by ntmerou~)
deoislona in tti6 State that a creditor le not bound to
aooept a 8~ less than'that which la due from hfe debtor
in Nl dieoharge or the debt, nor 18 a debtor under thorn
deolelons entitled to an aoqultame upon a ten6er to hi8
oreilltoror colleoting qent or en amount lees than 16
due Won hl&"
fn the aeee oi State v. Fulmre, 11 8. 8. 48, by the
oourtor Civil appeal*, but in which a petition r0r writ or
error was denied by the Supreme Court, where the tax oollbotor
demn&dm illegaltaxinadditlontothe ekouator tam6
legally due,the Court saids
n ...sbeeatme a pait may have been illegal &a not relieve
appellee fwm llabllity for'that part of the ~8-abmt
uhfoh no objeotlon could be urged on the gnnm& that the
levy or assesementu we8 invalid. In order to eaoape liablllty
ror the Interest and penalties allowed by the statute, he
should here terrderedthe eaount of taxea legally due:"
Of oop~ae, it the Texas &Bar Orleans Rallroa~ zx
had before February '1,~1939,tendered all ai the amoxm
the amount which it later pa%&, end had keptl3ia ten&e~'oo%~ Lb voulf
not hare been liable for the penalty. See: state v. RonRan,
201 S. 3. bss, by the Supreme court of Texas; ReseJ fr City Oi
Tyler, 45 3. a. (sd) 559; erst l3atlonelBurk'0r Lmpaeaa t. Oltr
of Laapaeaa. 78 S.W. 42; St. Leuie Southwestern Ry. Co. of l'exae
v. Indepemlent Sobgo ,D%strieb,SO S. W'i (26).9C&
Honorable Oborge A. Sheppard, Page S
But It Is rqually true that when the tax payer tenders
M amount in rd. payment 0r all his taxes, *oh amount 18 less
than the amount of taxes whloh he owea, ruoh tender Ia not‘etteo-
tIve and ehbuld not be oonrdderea in deternilnlng the anwunt or
the wty to be aharged.ag&ut him. ThIe me, In addltlon
to belne, mpgorted by the authorities, la a very reasonable and
logloal rule, the purposcr or whIoh la to prevent a tax payer from
tendering an amount a little ahart of the total amount du, In
the hop@ that It will he aoaepted in full payment, and dth the
kuowled&a that if it is not eacepted, the penalty will bo on
the mount abwe the amount of the tender only; and In the event
It Is aoaepted as part payment , oolleotlon will probably not be
made of the amall balanoe. It Is esaentlal ror the oolle~tioa
of taxes that the tax oolleotor not be placed In thin oompramIslng
position.
HOPine that this anmer8 your queetlon. we are
Very truly yours
AcTOI@iXYOltBERALOF TEXAB
BY
D. D. Mahon
ASEXSTMT