The Honorable Robert S. Calvert Opinion No. H- 174
Comptroller of Public Accounts
Finance Building Re: Determination of basis
Austin, Texas for levy of 4% Motor
Vehicle Sales Tax
Dear Mr. Calvert:
Your letter requesting our opinion states:
“The terms of Article 6.05 Taxation General
require that the purchaser and seller of a motor
vehicle shall make a joint affidavit stating the con-
sideration paid for a motor vehicle. The amount of
the total consideration serves as the basis for appli-
cation of the 4% Motor Vehicle Sales Tax due to be
paid to the County Tax Assessor-Collector.
“I am advised that at times affidavits are presented
to the Tax Assessor-Collector listing the consideration
of a 1973 automobile, in good condition, as being $100.00.
Although it is ridiculous to think that an arms lengthdeal
has been made at this low figure, the Tax Assessor-
Collector has no means of proving the affidavit to be
untrue. Please advise me if the Tax Assessor-Collector
has a legal right to refuse to accept the price stated on
the affidavit and to require that the Motor Vehicle Sales
Tax be paid on the fair market value of the vehicle. ”
Article 6.05 is part of Chapter 6 of Title 122a, Taxation-General, Vernon’s
Texas Civil Statutes, which deals with motor vehicle retail sales and use taxes.
Article 6.05 provides, in part:
p. 800
The Honorable Robert S. Calvert, page 2 (H-174)
“(I) The purchaser and seller shall make a joint
affidavit setting forth the then value in dollars of the
total consideration, whether in money or, other things
of value, received or to be received by the seller or
his nominee in a retail sale. . . . ”
Neither Article 6.05 nor any other Article in the Chapter now expressly
or impliedly provides that the assessor-collector is authorized to determine
the correctness of the consideration stated or to take any action if, in his
opinion, it is misstated.
Though the tax assessor-collector cannot refuse to accept an affidavit,
the purchaser and seller of a motor vehicle cannot make a false affidavit with-
out fear of sanction. If he suspects the affidavit misstatesthemount of the
sale, he should advise the District Attorney or the Comptroller of his suspi-
cions. Article 6.06, Taxation-General, V. T. C. S., provides for penalties and
interest where the tax due on a transaction is incorrectly stated. If the Comp-
troller determines that the amount of tax due was falsely reported in the affi-
davit, he is to notify the seller in writing of his determination. The seller
may then petition the Comptroller for a redetermination if he wishes, under
rules and regulations promulgated by the Comptroller. The “collection” pro-
visions of Chapter 20 of Title 122A (Taxation-General) have been said applicable
to amounts due under Article 6.06. See Attorney General Opinion M-913(1971).
Furthermore, both the existing Penal Code (Article 310) and the newly
adopted Penal Code to become effective January I, 1974, ($ 37.02) make false
swearing a crime.
SUMMARY
A county tax assessor-collector has no authority to
refuse to accept an affidavit submitted in connection with the
motor vehicle sales tax on the ground that it does not correct-
ly state the consideration paid, but the making of a false affi-
davit may subject its maker to other civil and criminal penalties.
c/ Attorney General of Texas
p. 801
r’ , --
The Honorable Robert S. Calvert, page 3 (H-174)
APPROhVED:
LARRY YORK, First Assista
DAVID M. KENDALL, Chairman
Opinion Committee
p. 802