Untitled Texas Attorney General Opinion

q3itr’ ‘jyil?=>&Q?ij ~AUSTXX,, ?t%?ZAS, ~. . ‘. dune.29, 1948 Hon. Harry Ben&e Crazier, Chairman Texas Employment Commlssiotl Austin, Texas Opinion No. v-620 Re: The authority of the Texas Rmployment Com- mission to grant a re- fund of taxes volun- ~tarilgpaid, upon a finding that an incor- rect rate of tax was Rear ~#r.Crazier: paid. We refer to~your letter wherein you req,uest the opinion of this office concerningwhether the Tex- as Employment Commission has the power, rightor au- thorlty~to grant under Article 5221b-12(j),V. C.~S., (now Article 5221b-12(j) (l), V. C. 9.) a refund of unemploymentcompensation taxes as applied for by Consolidated Steel Corporation. As to the circumstancessurroundingthis application for a refund, we quote from your letter as follows: '"TheConsolidated Steel Corporation was assessed by this Commission unemplog- ment compensation taxes forthe'%yearof 1944 at a rate of 2.7s. The Corporation voluntarily paid the taxes for the first quarter of this year at the rate of 2.7s. At a later date and during the second quarter of 1944, the Corporation decided that its rate for 1944 should be 0.5s ln- stead of 2.7% and paid its taxes for the second quarter of 1944 at the rate of 2.7$, but under protest, claiming the cor- rect rate at which it should pay its tax- es for 1944 was 0.5%. Suoh was likewise . . * 88 Hon.'Harry Benge Crosier, Page 2 (v-620) the procedure It followed for the taxes that accrued during the third and fourth quarters of 1944. “Suit was Instituted under Article 7057b for the recovery of.the taxes paid under protest for the second, tI$rd and fourth quarters of 1944, e e D "ConsolidatedSteel Corporat'io'n,pr.e- ,, *vailed in the suit brought for the recov- erg of the taxes paid under protest for the second,~third and fourth quarters of 1944. ‘Nowthe Corporation comes before this,Commissionand seeks a refund under particle522ib-l2(,j~.) of the taxes volun- tarily paid for'the first quarter of 1944 In excess of t'computationat the rate of 0.5% . *:.;m, . ., The'~exas'EmploymentCommission is given the'authorityto !&ke~refunds by Artlc~e 5221b;l:2(j),~ (l), which reads: :. “me,e ‘aby,, &&yi&: igit &~;na& a t p&m&t to'th.e.Comviiss,lon~,,'of contr~ibut$oqq ~., .. alle'gedto,be due, and Iti'is J.a%erdeter- mlped that''such,contributionswere'not!due.,. id 'wholeor in'part, the emp~oy@ig'unit'.:.j~. :. making such payment.may make ,applic,ation :, to the Commission for an adjustment there- of..i.nconnection with contribution.pay- ments then',due‘,or for a refund thereof. becauh sudh adjustment cannot.be made',.~ :.I:, and if~the Commission shall determine that such contributions,:or penalty,nor,a,ugpor- tion:thereof wereerroneously .coQected, the Commission shall allow such,employzng,' :. unit to make an adj.ustment thereof With- out i'uterestinky contribu- : connection with'. tionpayments then due by such emplogi,ng'~ unit, or,,if such adjustment cannot be, made, the.Cdinmiss~oh~shall~refund said ,a- mount witpout 'interestfrom the Fund,:pro-",., vlded that"no applloation foradjustment. or refund 'shall.everbe.~consideredby'the Commission unless the same.shall have been fli& ._. within.~four: .' (9).,years,fromthe'~date .. <,.: ; 1.: -;,: ~~ . ,!',::,,I. ,5',',. :': Eon. Harry Benge Crozier, Page 3'(V-620) 89 on which such contributionsor penalties would have become due, had such contribu- tions been legally collectibleby the Corn- mission from such employing unit. For like cause, and within the same period, adjustment or refund may be so made on the Commission's own initiative." Unquestionablythis article gives the Com- mission the authority to make adjustments or grant refunds of taxes where it has been determined that such~taxes have been erroneouslycollected. As to the application of this statute, this Court in the case of ~Jamesv; Consolidated Steel Corporation, 19.59. W. (2d) 955, refused, R. R. E., held that it -"relatesto errors made either by the contributor or by,the.CommisslonIn the calculationor collec- tion of such taxes which have been paid voluntarily." It has been determined that the taxes for which refund is here sought have been erroneously collected under the provisions of the Texas Unem- ployment CompensationAct. Rates at which taxes are paid are computed upon a calendar year basis. Since the Court lnthe,case of James v. Consolidated Steel Corporationheld that the rate at which Consolidated should have paid its taxes for the last three quar- ters of 1944 was .5$, it necessarilyfollows that the rate .at which it should have id its taxes for the first quarter of 1944 was .5r Instead of 2.7s; the rate at which itspaid the taxes for this quarter. It is apparent from your request'thatCo.n- solidated'sapplication ~fora refund relates'to tax- es voluntarily paid through,errorsof the contribu- tor or the Commission in the calculationor collec- tion thereof. _. Based upon the foregoing, it is our opinion that the Texas Employment Commissionhas the ~power, right and authority to grant the refund as applied for by Consolidated Steel Corporation. The delay.in replying to this request has been occasioned by careful study and briefing and the holding of numerous conferenceswith reference to every phase of this question. As requested we are returning the application attached to your let- ter. 90 Eon.~Harry Benge Crazier,,Page 4 ,(v~620) SUMMARY Th T&as'BmploymelatCotiis~sio~~~~s the power, right and authority under Art., 5221b-12(j) (l),,V. C. S., -togrant a re-, ‘fundof unemploymentcompensationtaxes erroneouslypaid. , Very truly.yours, .~ ATTORNEY GENERAL OF TEXAS~ Robert 0. Koch Assistant . .