Honorable Robert S. Calvert Opinion No. M-122 Comptroller of Public Accounts Austin, Texas Re: Limitation periods for deficiency deter- minations and suits to collect Limited Sales, Excise and Use Dear Mr. Calvert: taxes. you have requested our opinion on the following question: Under the provisions of the Limited Sales, Excise and Use Tax Act (Chapter 20, Title 122A, Taxation-General,Vernon's Civil Statutes) as modified by Article 1.045 (added as a new article in Title 122A by H.B. 144, Acts 60th Leg.R.S. 1967, ah. 448, p. 1019, effective July 1, 1967), must a suit for delinquent sales or use tax be brought within four years after the tax is due and payable, or does the Comptroller have four years in which to issue a deficiencydeterminationand there- after have an additionalperiod of time in which to bring suit? You state that before the enactment of Article 1.045 it was your position that you had four years in which to make a deficiency determinationand thereafteran additional three years in which to bring suit. This position was derived from paragraph (0)(1) of.Artlclq 20.06.andparagraph (G)(1) of Article 20.09. The former imposes a fou&year.limitation period for deficiencydeterminations,while the latter provides that if "any amount required to be paid to the State under this Chapter is not paid when due, the Comptroller may, within.three (3) years after the amount is due," file suit. your position was that the amount of a deficiency determinationwas not "due' until the date specified in paragraph (E) of Article 20.08, snu&th;~fore the suit limitationperiod did not begin until . Although there are no Texas casea on the point, the wsition was suuoortedbv three cases of courts of Cali- for&, whose sale;bd use 'taxstatutes contain similar limi- tation provisions. - 611 - Honorable Robert S. Calvert, page 2 (W-122) Paragraph (A) of Article 1.045 provides that, with certain exceptions, the COSiptrOller shall "assess* any tax imposed by Title 122A within seven years from the date "such tax is due and payable," and that he may bring suit within the sam~period, but that no action may be commenced after seven years “Ior such other shorter period of time as may be provided in this Title) from the date Such tax is due and payable*. (Underliningadded.) Row- ever, paragraph (8) of Article 1.045 provides: *For the purpose of the Limited Sales, Excise and Use Tax imposed by Chapter 20 of this Title, the period of time provided by this Article shall be four (4) years, and any provision of Chapter 20 to the contrary is hereby repealed to the extent of, such conflict.* While Article 1.045 Speak5 of "assessment"and Chapter 20 Speak5 of "determination",it seems clear that a "determination" is an "assessment"as that term is used in Article 1.045. Par- agraph (A) of Article 1.045 makes the limitationperiod for both aBBeBBSientB and BUit.5 t0 begin t0 run when ths tax iB due and pByabh. Paragraph (B) then expressly makes surperiod four years for the purpose of the tax imposed by Chapter 20. In view of the express repeal of any conflictingprovision of Chapter 20, we believe the *four plus three" position is no longer ten- able. This follows since the position depended on the limitation pe- riod for suit beginning on the due date of the determination, whereas Article 1.045 now expresslymakes the limitationperiod for bringing suit to begin on the due date of the - tax. There is the further question of the effect of the gshorter period of time* provision of paragraph (A) of Article 1.045, in view of the fact that the suit limitationperiod of Chapter 20 had been three years. tiowever, the anomaly of providing that the period for making a determinationis four years but that suit can be brought only during the first three years of that period is avoided by the provision of paragraph (8) of Article 1.045 that any provision of Chapter 20 18 repealed to the extent of the conflict. In.answer to your question, it is our opinion that the effect of paragraph (B) of Article 1.045 is to limit the time within which a deficiency determinationof the tax imposed by Chapter 20 can be made to a period of four years beginning when the tax is due and payable, and thatsuit to collect such tax Dust be brought within the SW period, exaept in the situation8 provfded for in para- graphs (A)(11, (A) (21, (A) (31, (Cl, (El and (?I of Article 1.045. - 612 - Honorable Robert S. Calvert, page 3 (U-132) SUMMARY The effect of paragraph (B) of Article 1.045, Title 122A, Taxation General; Vernon18 Civil Statutes, is to limit the time for de- ficiency determinationand suit to collect the tax imposed by Chapter 20 thereof to the same period of four years beginning with the date the tax is due and payable, except in certain situations provided for in other para- graphs of Article 1.045. ry truly, WW:dls General of Texar Prepared by Neil Williams Assistant Attorney General APPROVED; OPINION COWMITTEE Hawthorne Phillips, Chairman Kerns B. Taylor, Co-Chairman Bill Allen Dyer Moore, Jr. Malcolm Quick John Reeve5 W. V. Geppert STAFF LEGAL ASSISTAWT A. J. CARUBBI, JR. - 613 -