QBfficeof tiy ~ttotnep General
&date of aexae
DAN MORALES July 12, 1993
ATTORSEY
GESERAL
Honorable Luis V. Saenz OpinionNo. DM-235
Cameron county District Attorney
Cameron County Courthouse Re: Whether a delinquent tax penalty
914 East Harrison Street adopted by the Cameron County
Brownsville.Texas 78520 CommissionersCourt under section 33.07 of
the Tax Code applies to delinquent taxes
subject to insklbnent agreements entered
into under section 33.02 of the Tax Code
prior to July 1 of the year in which the taxes
became delinquent (RQ-528)
Dear Mr. Saenz:
On behalf of the Tax Assessor-Collector of Cameron County (the “tax assessor-
cokctor). you ask whether a delinquent tax penalty adopted by the Cameron County
CkxnmissionersCourt under section 33.07 of the Tax Code applies to delinquent taxes
subject to instaUmentrgreanents entered into under section 33.02 of the Tax Code prior
to July 1 of the year in which the taxes became delinquent. Subsection (c) of section 6.30
of the Tax Code au&or&s the goveming body of a taxing tit to contract with any
competent attorney to represent the tmit to enforce the collection of delinquent taxes.
Section 33.07 authotizes a taxing unit to provide that
tsxeJthat~delinquentonJuly1oftheyecrrinwhichthey
become delinquent incur an additional penalty to d&y costs of
CdlWtiO~ifthCUIlit... bas cmtracted wlth an attorney pmuant to
Section 6.30 of this code. The amount of the penalty may not exceed
15 percent of the amount of taxes, penalty and interest due.
You inform us that the Cameron County Commissioners CoUn has entered into an
agreement with a law firm to collect delinquenttaxes in accordance with section 6.30, and
has passed a resolution providing for a 15 percent penslty on taxes that remain delinquent
on July 1 of the year in which they become delinquent pursuant to section 33.07. YOU
state that “[t]he compensation under the contract with the kw fbm is the 15% penalty
~lecl by Section 33.07 and required by the CommissionersCourt.” You ask whether
p. 1217
Honomb~eLuis V. Saenz - Page 2 (D&235)
~Sl~pacmtpenaltymayberawwArgaiaPtataxpclyawhohrr~~intom
indbwnt apeanent with the taxing unit under section 33.02 prior to July 1 of the year
inwhichtbetaxesbecmcdelinquent.’
Section 33.02, which authorizes the cokctor for a taxing unit to mta an
agmeant with a person for the payment of delinquent taxes, penalties, and imerest in
imtallments, provides in pertknt part:
(a) The collector fbr a taxing unit that cokts its own taxes
mayenteranagreementwithapersonde&nquentinthepayomtof
thelax,pendtieqandinterestininlrtalhnentr. Theagmemmtmust
kiawriting~~ynotadmdforapaiodofmorrthan36
months.
(b) Interest awrues as provided by Subsection (c) of Section
33.01ofthiswdeontheunpaidbalanceduringthepcriodofthe
Igncment.
(c) A property OWIEI’S execution of an b~al&nt agreement
under this section is an irmwcable admissionof liabiity for all tax-
penalties, and interest that are subject to the agreement.
(d) Propatymaynotbeseitedmd~ldMdaarit~ynotbe
81ed to collect a delinquent tax subject to an bstalknt agreement2
lldeoEthCp~owner:
(1) 5ilstomakeapaymentasrquiredbythergrramm;
(2)failstopayotherpropertytaxesc4Alectedbytheunit
whendueasmquiredbythe4kcto~or
p. 1218
Honorable Luis V. Saenz - Page 3 (DM-235)
(3) breaches any other condition of the agreement,
. .
Tax Code 0 33.02(a) - (d) (footnote added).
The comptrolkr interprets section 33.02 to allow a delinquenttaxpayer who enters
into an insmllmentagreement to avoid the imposition of titrther penalties. A letter to the
tax assessor-wllector from the office of the comptroller states in pertinent part:
Subsection (b) [of section 33.021 provides that interest accrues on
the unpaid balance-the subsection does not provide for penalties to
accrueonthatbalance.. . . We have wnsistently interpreted Section
33.02(b) to allow a taxpayer to stop
. the imposition of penalties on
delinquent taxes by enteting mto an insmlhnent agreement.
Throughout the Tax Code, the Legislature specifies “interest”when
it means interest and “penalties”when it means penalties. Further,
we think the clear intent of Section 33.02 was to allow a taxpayer to
formally agree to pay delinquent taxes and avoid the imposition of
further penalties or a suit to wllect taxes-a taxpayer would have
little or no incentive to enter into an insmlhnent agreement if
penalties wntinued to accrue or he wuld still be sued for wlkction.
Uaderourimezpraation,atwpc?yacwldnotbe~leforthe 15
percent additionalpenalty ifhe entered into the instaumentagrmment
before July 1. Section 33.02 does not permit penshies to accrue
after the agreement is made and Section 33.07 does not permit the 15
percentadditionalpenaltytoattachuntUJuly1. Thishssbeenour
wnsistent administrativewnstruction of the law.
Letter to Antonio Yzaguirre, Jr., Tw Assessor-Collector, Cameron County, from Ray
Bonilla, General Counsel, Comptroller of Public Accounts, dated April 16, 1993
(emphasis in the originsl).
You disagree with the wmptroller’s wnchrsion. You contend that the phrase
“taxes that remain delinquent on July 1 of the year in which they bewme delinquent incur
an additional penalty” in section 33.07 refers to delinquent taxes subject to an installment
agreement. You base your contention on that fan that section 31.02(a), the provision
which establishes the date upon which tsxes become delinquent, sets forth cettain
exceptions, namely taxes paid under sections 31.02(b), 31.03 and 31.04, but does not
except taxes subject to an installmentagreement under section 33.02. We wncur with the
wmptroUer’sinterpretation of section 33.02, and tind your contention unpemuasive.
p. 1219
Honomble LadsV. Saenz - Page 4 (DM-235)
Fbst, we agree with the wmptrokr that it ia dkpoMve that section 33.02
acprrsslyprovidesthatimaenwntimreoto~eontheunpaidbalaaccbutdoesnot
dmitrlyprovidethatpwelti~wiUwn&etoiccrw. Again,subaection(b)ofsection
33.02 statesthat “[i]nrcrr.rraccruesasprovidedby Subsection (c) of Section33.01 of this
wdeonthetmpaidbalancedtuingthepekdoftheylrrsment: (Emphasisadded.)
Subsection (b) does not provide that penalffes will wntinue to be imposed. Significantly,
rcction33.01ppovidertorbathtbercaurlofintaat~theimporitiw0fpeaaltia.
%bsection (a) of section 33.01, for example,provides:
Adelitquenttaxincucsrpenaltyofsixpercentoftheamountof
the~forthe~crladumonShitirdelinqucntpl~onepaccllt
foreachdditionalmonthorportionofamonththetaxrem8ins
unpaid prior to July 1 of the yeu in which it bewmes delinquent.
However,ataxdeUtquentonJuly1incursatotalpenaltyoftwelve
percentoftbeamountoftbede&nquenttaxwitbout~tothe
mmberoftnontbsthetahasbeatdeUnquent.
In~~webclim~itisinsieaificMtthlltpeaiw31.02(a)doesnotaccept
instdment agreements. Section 31.02(a) establishes the date upon which taxes become
delinquent. It does not impose pen&k, nor do the provisions it excepts.) The
imposition of penalties is speciiically lddrrsred in sections 33.01.33.02, end 33.07. We
w~withthecomprrolldsw~onthat~provirionsdoaot~aturingunit
to imposea penaltyadoptedpursunt to section33.07 on a taxpayerwi20hasenteredinto
p. 1220
HonorableLuisV. Saenz - Page 5 W-235)
mstabat agreemmt under section 33.02 prior to July 1 of the year in which the mes
ikatne delinquent.’
SUMMARY
A delinquenttax penalty adopted under section 33.07 of the Tax
Code does not apply to delinquent taxes subject to &aliment
agramam entered into under section 33.02 of the Tax Code prior
toJuly1oftheyeuinwhichthetucesbecMledelinqumt.
DAN MORALES
Attorney Oeneral of Texas
WJLL PRYOR
FitSthSiStMtAttorlICyGenenl
MARYKELLER
Deputy Attomey Oend for Litigation
RENBAHICK!J
State Solicitor
MADELEINE B. JOHNSON
Chair, Opiion Committee
PreprredbyMaryR(--
Assistmt Attorney Ckaaal
p. 1221
Untitled Texas Attorney General Opinion
Combined Opinion