Case Information
*1 The Attorney General of Texas JIM MATTOX hagust 21. 1986
Attorney General
Supreme Cowl Building Opinion No. Honorable Gary Gar:::tson .JK-536 P. 0. Box 12548 Ector County Attor:rey Austin. TX. 78711. 2549 Re: Validity of a “tax clearance” Courthouse, Room 2’13 5121475.2501 account for excess property Odessa, Texas 79 761 Telex 9101874.1367 payments Telecopier 512l475-0256 [21417428944] 714 Jackson, Sulle 700 Dallas. TX. 752024506 Dear Mr. Garrison:
Pou ask us the following questions: Are any legal objections to the Tax there
4824 Alberta Ave.. Suite 160 Assessor-Collector of Ector County, Texas, having El Paso. TX. 799052793 a ‘tax el,earance’ account into which are deposited 9151533.3484 excess llroperty tax payments and from which are withdrawn amounts necessary to make up property
lW1 Texas. Suite 700 Houston, TX. 77002-3111 [71312255886] have the authority tax paynents which are short? legal ol jectlons, does the Tax Assessor-Collector to create such an account or If there are no
does thJs require approval from anyone -- ‘such as the Ectcr County Commissioners Court?
808 Broadway, SuiIe 312 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 understand you to ask whether such an account may be established 4309 N. Tenth. Suite S McAllen. TX, 78501.1685 would serve to satisfy, from the overpayments of taxpayers, 5121682.4547 those taxpayers who fall to tender sufficient payxent.
We conclude that no such account may be established. Because we do so, we need not answer your second question. 200 Main Plaza, Suite 400 San Antonio. TX. 78205.2797 You have provided us with the following information relevant 5121225-4191
your request: An Equal Opportunity1 The ‘tax clearance’ account concept is used by Affirmative Action Employer four ccunties’ tax officials whom I contacted.
They sa:Ltl that it is justified by convenience, 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 *2 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. is trans:iarred from the clearance
Money account to make up the shortage.
Article VIII, section 10, of the Texas Constitution provides the : following:
910. Release’ from payment of taxes 10. The Legislature shall have no power Sec.
to release inhabitants of, or property in, any the 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. III, section 55, of the Texas Constitution provides Article
following: $55. Release or extinguishment of indebtedness subdivision or municipal corpora- state, county, tion
Sec. 55. The Legislature shall have no power to release or extinguish, or to authorize releasing or sxt:lnguishing. in whole or in part. 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 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
offset the shortage of tho!re who fail to tender the full amount, the tax assessor-collector would be impermissibly waiving or releasing 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. the Texas Constitution. Since the legislature may not authorize the practice, follows that neither commissioners court *or 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 of those taxpayers who tendered an insufficient amount, the practice would still be statutorily impermissible. In your letter, you state 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
Eonorabla Gary Garrison - Pqe 4
NARY KELLER
Executive Assistant Attorney General
RICK GILPIN
chairman, opinion Cdttee
Prepared by Jim Moellinger
Assistant Attorney General