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OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AI+STlN
f;O2. ;ildnny’tatha2i
Seoretar~ 0r Stats
Au&h, Texas
Seer Sir:
was inproperly rim,
dldssed on imtion
d April24; 1944,has
been ooneid uote from ytxr letter
juCgmr&a were entered in a certain
benefit of several manufacturing oom-
tams under protest on the
saze ~roucdo. 3633 jud&-Ante were agreed u>m beoause
of the Swlsion iziZIouera v. Fair Amrican Eeflning Coqmnp,
7. 26 382, error rafueod. The olaos ootion
properly flied in a ootlrt or ooinpeteat
the in&lvlLlual .zctlan mn’;ioned in
wxi 1mpropsrl;r riled,
iion. Sidney Latha%, page 2
Vearlng in mind tbs foregoing faots, please advise
OA t;-.s rdi0whg queetiour
*':oes this depsrtmeat have the authority to now
voluntarily refund to trre oorwration involved the amounts
peid under proteat, suit for reoovery of whiob was filed
Sut in?roperly, aod subesqueatlg dis;aissed on uotion of
the plalntwr?~
Csotion 1 or Artlo 7057b,V. A. C. S., allow8 any
person, rim or oorporation, that is required to pay to tha head
of any State department any oooupation, gross.reoelpts, franohlse,
lloense or othtr privilege tax or fee, whloh he does not believe
he is lawrully required to pap, to aooompany auoh ?a$mnt with a
writtea protest, settlng ohIt fully and in detail the grounds for
whioh it 1s oontende& that suoh demand I8 unlawful.
Seotion 2 of this Artlole provides in part a8 rollavsr
"Upon the payment of suoh taxes or feos, aacompanled
by such written ;rotest, the taxpayer ahall have ninety (90~).'
days fro0 said date within whloh to file ault for the reoavery
thereor I.&any oourt or ooskpetent jurlsdlotion in Travis
County, Texas, and nooe other . . . Provl.Ced, however, where
a olaaa aotlon lo brought by any taxpayer all other taxpayers
belongiog to the olass sod repreaeoted'in suoh alas8 aotion
who have properlg prOt8Sted a8 herein provided shall not be
required to file separate suits but shall be entitled .to a&
gOV8raed by the deoision rendered in suoh olass aotion. . . .*
In opinion Xo. O-4819this departnent ruled:
Wonsequently, it is our opinion that rerund ror taxes
paid under iJroteat nay be aooompliahed only by oomplianoe
with the provisions of Artlole 7057b, sod that euoh refuods
zmy ae -made only after judg.oe.otfavorable to the taxpayer
is roaohed in a suit filed within ninety days fron: ths date
of myzrt *in any oourt of oonpetant juriadiotion ln Travis
Comty, Texas, ,aod'hone other.'"
As stated is yam request, the oorporration involved
did not obtain judgmmt ravorable to Its oause but rather volm-
terily dIsmissed its aotlon. ?crther?;lore,suit 'iyasnot filed
within the presoribod tis;e in a court of ooogetent jurlsdiotion
1~ Travis County, 'I"9mS.
lion. Sidcey Latham, gaze 3
11 opinion I:o.C-5876 this departusnt ruled that
it 1s necessary for me olaiei~ the benefit of the *olass
aotlon' povided ln .3wtim 2 of ?rtlcle 70573 to be spclfl-
callg nazxd 9s olsi~1~1~~or intervening in such suit in. order
to recover franotilse taxes gald under protest. ‘e gresu3e
ima reading y3ur reqiest that the oorgor: tlon under onnsldera-
tion uas not specifioslly namd as a plaintiff or lntervenor
in the class aotlon referred to in your letter, and as a
cotwequenae thereof, could not olali~ the beAmfit of thls 01~s
aotlon.
3ased upon the foregoing, Lt 1s the opknlon of this
deparMent that tke Z’eoretary of Stat. does snothave the authority i
to voluntarily refund tc the oorporation Involved the amount or
rranohlse tax paid under protest.
sy &/&maLL
Robert 0. Kooh
Assistant
i
Untitled Texas Attorney General Opinion
Combined Opinion