    OFFICE OF THE ATTORNE”   GLNEWL   STATE OF TEXAS

    JOHN    CORNYN




                                               August 29,200O



The Honorable Chris D. Prentice                        Opinion No. JC-0273
Hale County Attorney
500 Broadway, Suite No. 80                             Re: Whether a county tax assessor-collector who
Plainview, Texas 79072                                 collects the motor vehicle inventory tax must
                                                       register with the Texas Board ofTax Professional
                                                       Examiners, and related questions (RQ-02 10-JC)


Dear Mr. Prentice:

         The commissioners court of a county may enter into an interlocal contract authorized by
section 6.24@) of the Tax Code with an appraisal district or another taxing unit for the collection of
the county’s taxes. You have asked this office whether a tax assessor-collector, whose county has
entered into such a contract, remains exempt from the registration requirements of the Board ofTax
Professional Examiners ifthe assessor-collector receives the motor vehicle inventory tax reports and
payments mandated by section 23.121 and 23.122 of the Tax Code. See TEX. TAX CODE ANN.
@j 6.24(b); 23.121, ,122 (Vernon 1992 & Supp. 2000); see also TEX. REV. CIV. STAT. ANN. art.
8885,s 11B (Vernon Supp. 2000) (county tax assessor-collector exempt from registration with the
Board ofTax Professional Examiners ifcontract exists pursuant to section 6.24(b) ofthe Tax Code).
We conclude that the receipt of such reports and payments is collecting taxes, that the collection of
such taxes is not consistent with the statutory requirements for an interlocal contract under section
6.24(b) of the Tax Code and that the collection of such taxes is inconsistent with the purpose of
section 11B of article 8885 of the Revised Civil Statutes, which is “to waive the registration
requirement [ofarticle 8885, section 1 I] for county assessor-collectors who do notperformproperfy
taufinctions.”     S.J. OF TEX., 76th Leg., R.S. 2257-58 (1999) (statement of legislative intent by
Senator Moncrief) (emphasis added). Whether any particular contract fails to meet the requirements
of section 6.24(b), or whether any particular course ofdealings violates such a contract, are questions
requiring the interpretation of such a contract and determinations of matters of fact, and are therefore
outside the purview of the opinion process. See Tex. Att’y Gen. Op. Nos. X-0020 (1999) at 2
(“[IInvestigation and resolution of fact questions [ ] cannot be done in the opinion process.“); M-l 87
 (1968) at 3 (“[Tlhis office is without authority to make.    factual determinations.“); O-291 l(l940)
 at 2 (“[Tlhis     presents a fact question which we are unable to answer.“).

         Article 8885 of the Revised Civil Statutes establishes and governs the Board of Tax
Professional Examiners.     The purpose of the act is “to assure the people of Texas that the
responsibility of assessing property for taxation is entrusted only to those persons duly registered
and competent according to the regulations provided by this Act.” TEX. REV. CIV. STAT. ANN. art.
The Honorable   Chris D. Prentice   - Page 2       (JC-0273)




8885, 5 I (Vernon Supp. 2000). To that end, among those persons required to register with the
Board of Tax Professional Examiners are “the tax assessor-collector, tax collector, or other person
designated by the governing body of a taxing unit as the chief administrator ofthe unit’s assessment
functions, collections functions, or both.” Id. art. 8885,s 1 l(2). There are two statutory exceptions
to this registration requirement. Section 11A exempts the tax assessor-collector of a county with a
population of l,OOO,OOOor more. See id. art. 8885, 5 IIA. Section llB, with which you are
concerned, exempts a county assessor-collector “if the county has contracted under Section 6.24(b),
Tax Code, to have its taxes assessed and collected by another taxing unit or an appraisal district.”
Id. art. 8885, § 11B.

        Section 6.24(b) of the Tax Code provides:

                         The commissioners court with the approval of the county
                assessor-collector    may contract as provided by the Interlocal
                Cooperation Act with the governing body of another taxing unit in
                the county or with the board of directors of the appraisal district for
                the other unit or the district to perform duties relating to the
                assessment or collection oftaxes for the county. If a county contracts
                to have its taxes assessed and collected by another taxing unit or by
                the appraisal district, the contract shall require the other unit or the
                district to assess and collect all taxes the county is required to assess
                and collect.

TEX. TAX CODE ANN. $6.24(b) (Vernon 1992) (emphasis added).

          In 1998, before the addition of section 11B to article 8885, this oftice considered whether
the assessor-collector    of a county which had executed such a contract was exempt from the
registration requirements of article 8885. In Attorney General Opinion DM-470, we concluded that
in such a case, the assessor-collector     was not “actively engaged in appraisal, assessment, or
collection for a taxing unit,” see TEX. REV. CW. STAT. ANN. art. 8885, 5 15 (Vernon Supp. 2000),
and accordingly was not required to register. See Tex. Att’y Gen. Op. No. DM-470 (1998) at 6.

        The result of Attorney General Opinion DM-470 was, in essence, codified by the legislature
in 1999, when it enacted section I 1B. The language of section 11B was added to Senate Bill 674
by amendment in the Texas House of Representatives.      When the Senate considered the House’s
amendments of SB 674 on May 21,1999, Senator Moncrief, the bill’s sponsor, entered a statement
concerning the legislative intent in the Senate Journal:

                         SB 674 as amended by the House adds a new Section 11B to
                Article 8885, Revised Statutes, which exempts a county tax aasessor-
                collector from registering with the BTPE [Board of Tax Professional
                Examiners] if the county has contracted to have itS property taxes
                assessed and collected by another local government. Section 11B is
The Honorable    Chris D. Prentice    - Page 3      (X-0273)




                not intended to prohibit registration by anyone. The purpose of the
                section is to waive the registration requirement for county assessor-
                collectors who do not perform property tax functions.

S.J. OF TEX., 76th Leg., R.S. 2257-58 (1999) (statement by Senator Moncrief) (emphasis added).

         You suggest that in certain counties in which contracts under section 6.24(b) have been
executed, and hence the contracting unit or appraisal district is required “to assess and collect all
taxes the county is required to assess and collect,” TEX. TAX CODE ANN. 5 6.24(b) (Vernon 1992),
the assessor-collector is nevertheless “receiv[ing] the payments for the Motor Vehicle Inventory Tax
(MVIT) and then pass[ing] the funds along to the appropriate entity.” Request Letter.’ You ask
whether such an activity constitutes the collection or assessment of taxes, whether the receipt “of
money and monthly reports related to the motor vehicle inventory tax [must] be included in [a]
contract [pursuant to 9 6.24b],” and whether collectors “lose their exemption under Article 8885,
Section I IB” if they receive such deposits. Request Letter, supra note I, at 2.

         The provisions for taxation of the inventory of a dealer in motor vehicles to which you refer
are to be found in sections 23.121 and 23.122 oftheTax Code. As this office explained the statutory
scheme in Attorney General Letter Opinion No. 98-085:

                         Section 23.122 ofthe Tax Code.      provides for the collection
                and administration of property taxes imposed by all taxing units
                authorized to tax motor vehicle inventory in the county. Sections
                23.121 and 23.122 together create a special inventory category for
                dealer’s motor vehicles and require a dealer to make monthly deposits
                with the collector as prepayment of property taxes imposed on the
                inventory by relevant taxing units. Under section 23.122, a dealer
                must tile with the collector a monthly statement covering the sale of
                each motor vehicle sold in the prior month and remit the total amount
                of taxes assigned to those motor vehicles sold. The collector in turn
                must deposit the taxes remitted in the dealer’s escrow account that the
                collector is also required to maintain for each dealer at the county
                depository.

Tex. Att’y Gen. LO-98-085, at l-2 (footnotes omitted). In LO-98-085, this office considered
whether the duties of the assessor-collector with regard to the motor vehicle inventory tax could be
the subject of a section 6.24(b) contract, and concluded that they could: “There is no reason to
believe that the legislature did not intend section 6.24(b) to apply to tax collections under section
23.122.” Id. at 4.




         ‘Letter from Honorable Chris D. Prentice, Hale County Attorney, to Off& of the Attorney General of Texas
(Mar. 29,200O)(attached Brief In Support ofRequest for Attorney GeneralOpinion) (on file with Opinion Committee).
The Honorable   Chris D. Prentice   - Page 4     (Jc-0273)




         You ask, in effect, two related questions: first, whether the taking of reports and deposits
pursuant to section 23.122 constitutes the collecting of taxes; and second, whether a county which
has entered into a section 6.24(b) contract with an appraisal district must include in that contract a
provision requiring the appraisal district to collect the motor vehicle inventory tax. See Request
Letter, supra note 1, at 2. As to the first question, in our view it was implicitly answered in the
affirmative by Letter Opinion 98-085. The very acts about which you ask were in that opinion said
to be the appropriate subject of a section 6.24(b) contract - a contract, that is to say, for the
collection of taxes. See Tex. Att’y Gen. LO-98-085, at 4. Article 8885, section 2(6) defines
“collections” to mean“those functions described in Chapter 3 1 and Sections 33.02,33.03, and 33.04,
Tax Code.” TEX. REV. CIV. STAT. ANN. art. 8885, 5 2(6) (Vernon Supp. 2000). The receipt of
payments is explicitly referenced in section 3 1.06, for example, of the Tax Code, which permits a
collector to accept currency of the United States, checks, money orders, credit cards, or electronic
funds transfers. See TEX. TAX CODE ANN. 3 3 1.06 (Vernon Supp. 2000). The receipt of motor
vehicle inventory tax prepayments is unquestionably the collection of taxes within the meaning of
article 8885.

         As to your second question, section 6,24(b) explicitly requires that, when a county enters into
a contract under it with another taxing unit or an appraisal district, “the contract shall require the
other unit or the district to assess and collect all taxes the county is required to assess and collect.”
Zd. 4 6.24(b) (Vernon 1992). The motor vehicle inventory tax is, pursuant to sections 23.121 and
23.122, a tax the county is required to assess and collect. It therefore follows that the collection of
motor vehicle inventory tax prepayments must be included in a contract under section 6.24(b).

         Your final question is whether the collection of such payments and the receipt of the
attendant monthly reports will cause assessor-collectors to “lose their exemption under Article 8885,
Section 11B.” Request Letter, supra, note 1, at 1. Again we note that we cannOt interpret particular
contracts or make determinations with regard to particular fact situations. However, it is clear that
the exemption provided by section 1 IB is premised upon a section 6.24(b) contract and that such a
contract is statutorily required to provide that the assessor-collector cede to the appraisal district or
taxing unit the duty “to assess and collect all taxes the county is required to assess and collect.”
TEX. TAXCODEANN. 5 6.24(b) (Vernon 1992) (emphasis added). The assessor-collectorcannotpick
and choose. The purpose ofthe exemption is, as Senator Moncrief s statement pointed out, to waive
registration requirements for assessor-collectors “who do not perform property tax functions.” S.J.
OF TEX., 76th Leg., R.S. 2257 (1999). The collection of taxes is the performance of such a function.
Accordingly, such activity does not come within the exemption provided to assessor-collectors by
article 8885. section 11B.
The Honorable   Chris D. Prentice    - Page 5      (~~-0273)




                                          SUMMARY

                         An interlocal contract between an assessor-collector and an
                appraisal district or other taxing unit pursuant to Tax Code section
                6.24(b) requires the taxing unit or appraisal district to collect all taxes
                the county is required to assess and collect. The motor vehicle
                inventory tax is a tax the county must assess and collect. As such, the
                tax must be included in an interlocal contract under section 6.24(b).
                The collection of such taxes by an assessor-collector,         rather than
                pursuant to the section 6.24(b) interlocal contract, precludes
                application of article 8885, section 1 IB ofthe Revised Civil Statutes
                exempting assessor-collectors from regulation by the Texas Board of
                Tax Professional Examiners.




                                                 Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
