Untitled Texas Attorney General Opinion

Summarize Case

Related Cases

E QRNEY GENERAL EXAS Honorable Robert S. Calvert Opinion Wo. C-143 Comptroller of Public Accounts Capitol Station RR: Whether certain notice Austin, Texas Is a sufficient act to ,prevent running of limitation under Art. 16.01, Title 122A, Taxation-General, R.C.S., as amended In 1963. Dear Mr. Calveft: You have asked ua It.. . whether the filing of notice of State's lien under provisions of Articles 1.07, 1.07A and 1.07B. Tit1.e 122A, Taxation-General, Revised Civil Statutes of Texas, la an Act which will protect the State's interest In taxes due, on the transfer of no-par stock." Your inquiry is predicated upon the Act1 of our last Legislature which, In Its re~levantportion, states: II No action shall be commenced or prosecuted after'the'exoiration of one hundred and eighty (ItJO) days from the effective date of this Act In regard to stock transfer taxea accruing on transfers ofllno-par shares of stock prior to such effective date. (under- scoring added.). Our opinion la that the '. . . action . . . commenced or prosecuted . . .' contemplated by this Act must be a suit filed In a court of competent Jurisdiction which seeks pay- ment of the taxes referred to in the Act. Therefore, the fil- ing of notice of the State's lien mentioned in your inquiry would not be a sufficient action to prevent running of the bar of limitation provided in the Act. We quote from the following authorities: II An action is a judicial proceeding, either in law or'ln equity, to obtain certain relief at the IActs 1963, 58th Leg., Ch. 513, p. 1351, H.B. 668, which amended Art. 16.01 of Title 122A, Taxation-General, Revised Civil Statutes of Texas. This Article Imposes a tax upon the sale and transfer of corporate shares. -698- -- I Hon. Robert S. Calvert, page 2 (C-143 hands of the court . . ." Elmo v. James, 282 S.W. 835 (Tex. Civ. App. 1926, error dism.). II . . . To constitute the proceeding 'a suit' or 'action,' in any legal sense, it is essential that it rest In a court, with the power to hear it . . .' United ProductIonCorporation-v. Hughes, 137 Tex. 21, 152 S.W.2d 327 (1941). Accord: Merchants' Mutual Insurance Co. v. Lacrolx, 35 Tex. 249 (1871-2); Hereford Independent School Diat . v. Jones, 118 !kx. 655, 23 S.W.2d 690 (1930). The lien provided by Articles 1.07,,1.07A and 1.07B is merely security for the tax, and when the tax is barred by limitation the State is left without any remedy upon the lien. The following authorities establish this principle with reference to debts; we hold that this principle is also aDDliCable .~.~. ~~~ to the lien wrovislons and the taxes under con- sideration. Blackwell ;. Barnett, 52 Tex. 326, 332-333 (1879); Hawthork;. :;;tes B;os~O~~O~~,"~~;8s:: (Te'ei3Clv. App'.1918); 36 . . 67 - , The amended act which states, "Nonaction shall be commenced or rosecuted after the expiration of one hundred and eighty (180) days;" is a statute of limitations, and to be available as a defense must be affirmatively pleaded. Cook v. city of Booker, 167 s.w.2d 232 (Tex. civ. App. 19$2 Attorney Qeneral's Opinion No. O-7303 (1946) and V-39 (1947 Limitation statutes do not release or extinguish the debt but merely affect the remedy when Its enforcement is Sam Bassett Lumber Co. v. City of Houston, 145 Tex. ;;:~"198 S.W.2d 879 (1947). You are therefore advised that filing of notice of the State's lien pursuant to Articles 1.07, 1.07A and 1.07B of Title 122A, Taxation-General, R.C.S., is not an action which will prevent the running of limitation under Article 16.01, as amended by Acts 1963, 58th Legislature. SUMMARY "Filing of notice of the State's lien pursuant to Articles 1.07, 1.07A and 1.07B of Title 122A, Taxation-Oeneral, R.C.S., Is not an action whlch~will prevent the running of limitation under -699- Hon. Robert S. Calvert, page 3 (C-143 Article 16.01, as amended by Acts 1963, 58th Legislature. Very truly yours, WAGGONER CARR Attorney General Allen BKW Assistant Attorney General APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Joseph Triable Jack Goodman J. H. Broadhurst J. Arthur Sandlin APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone -7oo-