Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GERALD C. MANN ATTORNEY GENERAL
Honorable George H. Sheppard Comptroller of Public Accounts Asstin, Texas
Dear Sir:
Opinion No. 0-4958
He: Does a Tax Assessor-Solicetor have the authority to repors the state and county ad ralstom taxes delinquent in a case where he accepts a check in payment of the taxes, and the check is returned unpaid?
This will acknowledge receipt of your letter of November 2, 1942, as followed.
"We are enclosing a copy of opinion 0-4745 with reference to the cancellation of a one per- cent motor vehicle tax receipt, where the tax As- sessor-collector had accepted a check in payment of the retail sales tax levied by article 7047K Vernon's Annotated Civil Statutes, and the check was returned unpaid. We are also enclosing a copy of opinion written by F. O. McKinsey, Assistant At- torney General, on January 16, 1932, in which he held that the tax Assessor-collector would have the authority to report ad ralstom taxes delinquent in a case where he had accepted a check in payment of the taxes, and the check was deposited by the Tax Assessor-collector in the county depository, and the bank on which the check was drawn issued a draft to add county depository, but before the draft was paid, the bank on which the check was drawn closed its doors.
*2 Honerable George H. Sheppard - Page 2. "He also aall your attention to Opinion 0-2889, written by Judge Oele Speer on November 19, 1940. "Please advise us whether or not your opinion supersedes Judge Moxinney's opinion, and applies to ad valorem tax payments, as well as one pereent notor vehicle tax payments. "Inasmuch as Judge Moxinney's opinion specifically referred to a bank falling, we shall ask that you advise us whether or not the Tax Assessor-colleotor has the authority to report the State and oounty ad valorem taxes delinquent in a case where he aceepts a cheek in payment of the taxes, and the cheek is returned unpaid."
You first ask whether or not our Opinion No. 0-4745, a copy of which you anelosed with your letter, holds contrary to the opinion of former Assistant Attorney General F. O. Moxinney, directed to you under date of January 16, 1932, a copy of which is also anclosed with your letter. You also enclose a copy of the opinion of the Attorney General written by Assistant Attorney General Oele Speer to you under date of November 19, 1940.
While these three opinions are on a related subject, they are distinguishable, upon the facts presented, and not in conflict, as we shall presently point out. All of these opinions express the ecanon conclusion, sustained by ample authority, that the tax collector is not authorized to aceept anything in payment and discharge of taxes owing the state and oounty except cash. Austin Y. Fox, 1 S. W. (2d) 601; Figures v. State, 99 S. W. 412; Ward v. Marion Co., 62 S. W. 557, 63 S. W. 155; Miller v. State, 53 S. W. (2d) 790; Soisson v. State, 51 S. W. (2d) 703.
It is, of course, common knowledge and practice that a very substantial portion of state and oounty ad valorem taxes, as well as other taxes, are paid to the tax collector by cheek, but the common practice of the tax collector in thus aceepting cheeks, while not illegal as between him and the tax payer, in the sense it is specifically condemned by statute, is nevertheless unauthorized. Until the cheek is paid, it amounts to nothing more than a personal and private arrangement between the tax collector and tax payer for the convenience and acoomodation of the latter.
*3
Honorable George H. Sheppard - Page 3.
What are the distingsishable features of these three opinions? In the opintion of Jutge F. O. McKinney of this department of date January 16, 1932, directed to you, the state and ounty ad valorem tazes were not in faet legally paid for the obvious reaon that the usual and oonventional banking practicea resorted to by the Collector and the tax payer for the collection of the oheok never reached the atage of final payment to the collector, the drawe bank having beome insolvent before the oheok oleered. In brief, the taxes were not paid, henee beoane delinquent; and having beoane deliaquent, it was the duty of the rex collector under the provisions of Article III, Soetion 55, Constitution and Artioles 7260,7263 and 7321, V. A. C. 8. to report the taxes delinquent.
In the Opinion 110. 0-4745 of this departmont under date of Ootober 20, 1942, by Assistant Attorney General Oecil 0. Rotgeh, also directed to you, it must be borne in mind that the tax there involved is a reta:l salea tax imposed on the retail sale of motor vehiolea by virtue of Sootion 5 of Aets of 1941, 47th Legislature, Chapter 184, Artiole VI, which is Artiole 7047 k in V. A. C. S. In this inetance the Tax Collector had a double duty to perform: (1) To oollect the texes imposed by law upon the sale or tranafer of motor vehiolea within his oounty; (2) To register aueh motor vehiolea after the tax has been paid, and to refuse to regiater aueh motor vehiolea nutil the tax is paid. These duties devolve upon the Tax Collector simultaneously ae observed from the following provision, a part of the act: "The tax shall be paid at the tine application is made for registration of said motor vehicle, and the tax collector shall refuse to issue the regiatration liceneg urtill the tax is paid." (Emphasis oura.)
The Leghalature evidently had in view the possibility of the state losing the taxes imposed under this provision of the atatute, altogether a different kind of tax from state and oounty ad valorem taxes, unleag the rex collector oollected and the tax payer paid the taxes simultaneoualy and onourreanly with the tranafer of the motor vehicle. This, we think, gave rise to the above quoted provleion of the law.
*4 Havorable George H. Sheppard - Page 4.
It is also significant to further note that this article provides that the Collector report taxes collected and paid, but makes no provision for assessment of the taxes or reporting delinquencies thereunder as in the case of an valerem taxes. The Legislative intent of thus imposing extra care and diligence upon the part of the Tax Collector in the method of collecting these special taxes is thus further emphasized. The Tax Collector accepted the check as payment of the tax in this instance, hence, there was not only a violation of his authority as Tax Collector, but in so doing he enabled the tax payer to escape the tax levy and make the collection thereof impossible or impracticable. We think the opinion correctly holds that the Tax Collector and his bondemen should be held liable for the loss thus occasioned.
In our opinion No. 0-2589 under date of November 19, 1940, by Assistant Attorney General Osie Speer holding, under the facts of that case, that the tax payer had in legal effect paid his taxes, even though the Collector did not physically receive cash, is based upon the premise that in that case the tax payer did in truth and in fact legally pay his taxes. Failure of the Collector to actually and physically receive the cash was not due to any fault of the tax payer but to his own, as pointed out by Judge Speer. The Collector accepted the bank's check in lieu of cash, causing the tax payer's check to be paid and her account accordingly charged. The situation would be the same as if the Collector had received cash upon the check and immediately purchased the cashier's check therewith. In such a case obviously the liability rests upon the Tax Collector and not the tax payer. Moreover, in this instance the Collector recognized his personal liability by filling his claim and collecting a divident thereon from the insolvent bank.
We have thus taken some pains, at the risk of being tedious, to point out wherein we think all three decisions are correct and not in conflict.
We come now to the specific question contained in your request:
"Does a Tax Assessor-Collector have the authority to report the state and county ad valorem taxes delinquent in a case where he accepts a check in payment of the taxes, and the check is returned unpaid?"
*5 Honevable George M. Sheppard - Page 5.
It follows from what we have said in our comments on the prior opinion of Judge McKinsey, that we are of the opinion that the Tax Collector has the authority to report the state and county ad valorem taxes delinquent, where he receives a check in payment thereof, which is returned unpaid. We do not reach this conclusion based upon the theory that the Tax Collector is authorized to accept the tax payer's check in lieu of cash; strictly speaking he is not, but it is based upon the broader principle that the tax payer cannot escape and discharge his obligation to the state and county in the payment of his taxes by check dishonored by the bank upon which it is drawn. In other words, his taxes are not paid, and, therefore, must be delinquent, and being delinquent, should be reported as such. The tax payer's rights to make conventional payment by check, if such he has, must yield to the paramount rights of the state and county to receive only cash in the payment of taxes, and until this and is accomplished his taxes are delinquent if the time fixed by law for payment has expired.
You are, therefore, respectfully advised that in our opinion a Tax Assessor-Collector has the authority to report the state and county ad valorem taxes delinquent in a case where he accepts a check in payment of the taxes, and the check is returned unpaid.
Under certain circumstances, the Tax Collector and his bondamen may undoubtedly be liable to the state and county arising from his unauthorized act in accepting the tax payer's personal check instead of cash; and it is not our intention of purpose in this opinion to hold to the contrary. This is clear from our comments above on our former opinions No. 0-4745 and No. 0-2889 by Assistant Attorneys General Rotash and Speer respectively. We do not understand this question to be within the purview of your inquiry in the instant case, however, this opinion covers only the matter of the right of the Collector to report as delinquent taxes attempted to be paid by the tax payer's unhonored personal check.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By
By
CORP. Y. C. Lollar Assistant
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