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:




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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
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              The   Honorable      Robert   S.    Calvert,   page    3    (H-174)




              APPROhVED:




              LARRY             YORK,   First     Assista




              DAVID M. KENDALL,                  Chairman
              Opinion Committee




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