Hon. Robert S. Calvert
Comptroller. of Public Accounts
Capitol Station
Austin, Texas
Opinion No. S-130~
Re: Authority to refund monies under Article
4388, V.C.S., when the monies were paid
to the State pursuant to the protest.statute
Article 7057’b, V.C.S.. and the protesting
taxpayer failed to observe the requfre-
Dear Mr. Calvert: ments of the protest statute.
.~You have. re+zested an opinion of this office, and the tiiter bask
re,stated the facts and the question, as he knows them to exis!, as fottows:
The Coleman Gas Company made protest tax pay-
ments to the Comptroller of Public Accounts under the now
unconstitutional “gas gathering tax.” (Article ,7057f, Ver-
non’s Civil Statutes) The monies collected were placed ‘*
by the Comptroller in the “suspense account.” The gas
company properly instituted’the suit within ninety days
after the protest payment; however, two subsequent tax
payments were not properly set up by amendment to the
petition. The gas company. recognizing it could not te-
cover these payments pursuant to the&ptotest statute,
dismissed its suit as to these two subsequent tax pay-
ments and requested the Comptroller to refund these
monies by virtue of the provisions of Article 4388, V.C.S.
All the monies paid under pr%%t~have remained in the
“suspense account.”
The question is whether’s taxpayer initially pursuing his
remedy under Article 7057b, V.C.S., may abandon such a suit and seek
to have the tax payments refunded by virtue of Article 4388, V.C.S.
We are of the opinion that once the taxpayer abandons its
rights under Article 7057b, the tax monies in the suspense account be-
come subject to the discretionary action of the Comptroller of Public
Accounts to determine the monie~s’ status. Therefore, should the
Comptroller determine that the monies do not belong to the State a re-
fund should be made to the proper party as authorized by Artide 4388.
Hon. Robert S. Calvert, page 2 (S-130)
There exists only one “suspense account” administered by the
Treasury Department. Tax funds are deposited into this account for one
of two reasons: (1) either the funds were paid under the protest statute
and are required by law to be placed in suspense, or (2) the head of the
collecting department cannot determine the status of funds paid without
protest to the State.
Article 4388 permits State departments to deposit collected
monies of undetermined status into the suspense account. Upon the deter-
mination of the status of these monies by the department head, the portion
belonging to the State is deposited into the Treasury and the ‘balance’ is
refunded to the proper party.
The protest statute (Article 7057b), enacted subsequent to
.Article 4388, permits a protesting taxpayer the right to institute suit
agiifnst the State; it requires that the tax monies be placed in the suspense
&+ount and should the protesting taxpayer prevail the monies must be re-
.fur@ed. Section 7 of Article 7057b reads as follows:
,u
The provisions of this law shall be cumulative of all
laws relating to the payments of tares or fees of undetermined
status and for the holding ther,eof in the suspense account fund
.of’the State Treasnrer.”
The above quoted language reveals that the protest statute does not pre-,
elude the relief to whfch the taxpayer might be entitled under Article 4388. -
SUMMARY
Upon abandonment of a suit instituted under Article ,.~~
7057b, V.C.S., thereby withdrawing from the Court’s
jurisdiction the authority to determine the status of the .~ ’.
tax monks paid under protest, the taxpayer may have a
refund of monies in the “suspense account” of the State
Treasurer, upon a determination by the Comptroller that
the monies do not belong to the State.
APPROVED: Yours very truly.
L. Pi Lollar JOHN. BEN SHEPPERD
Taxation Division Attorney General
John Atchison
Reviewer
J. A. Amis, Jr. William W. Guild
Reviewer Assistant
John Ben Shepperd
Attorney General