Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MATTOX hagust 21. 1986
Attorney General
Supreme Cowl Building Honorable Gary Gar:::tson Opinion No. .JK-536
P. 0. Box 12548
Austin. TX. 78711. 2549
Ector County Attor:rey
5121475.2501 Courthouse, Room 2’13 Re: Validity of a “tax clearance”
Telex 9101874.1367 Odessa, Texas 79 761 account for excess property tax
Telecopier 512l475-0256 payments
714 Jackson, Sulle 700 Dear Mr. Garrison:
Dallas. TX. 752024506
21417428944 Pou ask us the following questions:
Are there any legal objections to the Tax
4824 Alberta Ave.. Suite 160
El Paso. TX. 799052793
Assessor-Collector of Ector County, Texas, having
9151533.3484 a ‘tax el,earance’ account into which are deposited
excess llroperty tax payments and from which are
withdrawn amounts necessary to make up property
lW1 Texas. Suite 700
tax paynents which are short? If there are no
Houston, TX. 77002-3111
legal ol jectlons, does the Tax Assessor-Collector
71312255886
have the authority to create such an account or
does thJs require approval from anyone -- ‘such as
808 Broadway, SuiIe 312 the Ectcr County Commissioners Court?
Lubbock, TX. 79401.3479
SOSil4?-5230
By your use of the phrase “tax clearance” account and the
authorities which you cite in the brief accompanying your request, we
4309 N. Tenth. Suite S understand you to ask whether such an account may be established that
McAllen. TX, 78501.1685 would serve to satisfy, from the overpayments of taxpayers, the tax
5121682.4547
liabilities of those taxpayers who fall to tender sufficient payxent.
We conclude that no such account may be established. Because we do
200 Main Plaza, Suite 400 so, we need not answer your second question.
San Antonio. TX. 78205.2797
5121225-4191 You have provided us with the following information relevant to
your request:
An Equal Opportunity1
Affirmative Action Employer The ‘tax clearance’ account concept is used by
four ccunties’ tax officials whom I contacted.
They sa:Ltl that it is justified by convenience, the
money aid effort spent to return overage/shortage
checks, and revenue lost from not immediately
deposlt:lug tax payments into the county treasury.
The amomt of excess might be noted for audit and
account,Lng purposes. Each county set a monetary
limit, such as $10.00, below which a refund would
p. 2467
Eonorable Gary Garrison - Page 2 (JX-536)
be sent only upon taxpayer request. Apparently,
under the Properi:y Tax Code, a refund of excess
payment is not required unless and until a tax-
payer requests it. The excess amount would be
deposited into !:he tax clearance account. Tax
payments which are ‘short’ by no more than a set
amount, such as $2.00. are acceptad. The shortage
is noted for auditing and accounting purposes.
Money is trans:iarred from the tax clearance
account to make up the shortage.
Article VIII, section 10, of the Texas Constitution provides the :
following:
910. Release’ from payment of taxes
Sec. 10. The Legislature shall have no power
to release the inhabitants of, or property in, any
county, city or town from the payment of taxes
levied for Stats or county purposes, unless in
case of great public calamity in any such county,
city or town, when such release may be made by a
vote of two-thirds of each Rouse of the Legisla-
ture.
Article III, section 55, of the Texas Constitution provides the
following:
$55. Release or extinguishment of indebtedness to
state, county, subdivision or municipal corpora-
tion
Sec. 55. The Legislature shall have no power
to release or extinguish, or to authorize the
releasing or sxt:lnguishing. in whole or in part.
the indebtednesri,, liability or obligation of any
corporation or jadividual. to this State or to any
county or defired subdivision thereof, or other
municipal corporation therein, except delinquent
taxes which have! been due for a period of at least
ten years.
While penalty and interest owed on delinquent taxes may be waived
if it is so provided by l~aw. Jones v. Williams, 45 S.W.2d 130 (Tex.
1931) ; Attorney General Dpinion JM-311 (1985), taxes themselves,
whether current or delinquent. clearly may not be. Smith v. State,
420 S.W.2d 204 (Tex. Civ. App. - Austin 1967). aff’d. 434 S.W.2d 342
(Tex. 1968). State v. Pkneer Oils Refining Co., 292 S.W. 869 (Tex.
1927). By utillaing any &ess tax monies paid to the taxing units to
P. 2468
Eonorable Gary Garrison - Pa:ge 3 (JM-536)
offset the shortage of tho!re who fail to tender the full amount, the
tax assessor-collector would be impermissibly waiving or releasing the
debts owed by those who fa!.led to tender the sufficient amount. The
legislature Is clearly prohibited from authorizing such a practice by
article III. section 55, and article VIII, section 10. of the Texas
Constitution. Since the legislature may not authorize the practice,
it follows that neither the commissioners court *or the tax
assessor-collector may do so.
Even if the practice about which you inquire were established
only for purposes of more efficient accounting, &, if no attempt
were made to release or extinguish the tax liabilities of those
taxpayers who tendered an insufficient amount, the practice would
still be statutorily impermissible. In your letter, you state that
tenders of payment which are less than the amount imposed by, for
example, $2.00 are acceptoil. There are only two means by which a
tender of less than the amount imposed may be accepted~. First,
section 31.03 of the Tax C,ode authorizes a split payment whereby a
taxpayer.who tenders one-half of the taxes owed by December 1 may
tender the remaining half by July 1 with no accrual of penalty or
interest. Second, section 31.05 of the Tax Code authorizes discounts
of certain specified percer.tages for payments tendered before January.
There is no other provision which permits acceptance of any amount
tendered that is less than the amount of taxes imposed.
Accordingly, we, conclude that the county tax assessor-collector
may not establish a “tax c,learance” account in which excess property
tax payments may be depo,;:Lted and then withdrawn to offset those
property tax payments which are less than the amount imposed.
SUMMARY
A county tax assessor-collector may not esta-
blish a “tax cl,carance” account in which excess
property tax payments may be deposited and then
withdrawn to offeiet those property tax payments
which are less tham the amount imposed.
JIM HATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
p. 2469
Eonorabla Gary Garrison - Pqe 4 (JM-536)
NARYKELLER
Executive Assistant Attorney General
RICK GILPIN
chairman, opinion Cdttee
Prepared by Jim Moellinger
Assistant Attorney General
p. 2470