                          QBfficeof tiy ~ttotnep General
                                  &date of aexae
DAN MORALES                               July 12, 1993
 ATTORSEY
      GESERAL




     Honorable Luis V. Saenz                     OpinionNo. DM-235
     Cameron county District Attorney
     Cameron County Courthouse                   Re: Whether a delinquent tax penalty
     914 East Harrison Street                    adopted by the Cameron County
     Brownsville.Texas 78520                     CommissionersCourt under section 33.07 of
                                                 the Tax Code applies to delinquent taxes
                                                 subject to insklbnent agreements entered
                                                 into under section 33.02 of the Tax Code
                                                 prior to July 1 of the year in which the taxes
                                                 became delinquent (RQ-528)

     Dear Mr. Saenz:

             On behalf of the Tax Assessor-Collector of Cameron County (the “tax assessor-
     cokctor). you ask whether a delinquent tax penalty adopted by the Cameron County
     CkxnmissionersCourt under section 33.07 of the Tax Code applies to delinquent taxes
     subject to instaUmentrgreanents entered into under section 33.02 of the Tax Code prior
     to July 1 of the year in which the taxes became delinquent. Subsection (c) of section 6.30
     of the Tax Code au&or&s the goveming body of a taxing tit to contract with any
     competent attorney to represent the tmit to enforce the collection of delinquent taxes.
     Section 33.07 authotizes a taxing unit to provide that

               tsxeJthat~delinquentonJuly1oftheyecrrinwhichthey
               become delinquent incur an additional penalty to d&y costs of
               CdlWtiO~ifthCUIlit... bas cmtracted wlth an attorney pmuant to
               Section 6.30 of this code. The amount of the penalty may not exceed
               15 percent of the amount of taxes, penalty and interest due.
     You inform us that the Cameron County Commissioners CoUn has entered into an
     agreement with a law firm to collect delinquenttaxes in accordance with section 6.30, and
     has passed a resolution providing for a 15 percent penslty on taxes that remain delinquent
     on July 1 of the year in which they become delinquent pursuant to section 33.07. YOU
     state that “[t]he compensation under the contract with the kw fbm is the 15% penalty
     ~lecl by Section 33.07 and required by the CommissionersCourt.” You ask whether




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Honomb~eLuis V. Saenz - Page 2      (D&235)




~Sl~pacmtpenaltymayberawwArgaiaPtataxpclyawhohrr~~intom
indbwnt apeanent with the taxing unit under section 33.02 prior to July 1 of the year
inwhichtbetaxesbecmcdelinquent.’

       Section 33.02, which authorizes the cokctor for a taxing unit to mta an
agmeant with a person for the payment of delinquent taxes, penalties, and imerest in
imtallments, provides in pertknt part:
               (a) The collector fbr a taxing unit that cokts its own taxes
          mayenteranagreementwithapersonde&nquentinthepayomtof
          thelax,pendtieqandinterestininlrtalhnentr.     Theagmemmtmust
          kiawriting~~ynotadmdforapaiodofmorrthan36
          months.
              (b) Interest awrues as provided by Subsection (c) of Section
          33.01ofthiswdeontheunpaidbalanceduringthepcriodofthe
          Igncment.
             (c) A property OWIEI’S      execution of an b~al&nt agreement
         under this section is an irmwcable admissionof liabiity for all tax-
         penalties, and interest that are subject to the agreement.
              (d) Propatymaynotbeseitedmd~ldMdaarit~ynotbe
         81ed to collect a delinquent tax subject to an bstalknt agreement2
         lldeoEthCp~owner:
                  (1) 5ilstomakeapaymentasrquiredbythergrramm;
                 (2)failstopayotherpropertytaxesc4Alectedbytheunit
              whendueasmquiredbythe4kcto~or




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Honorable Luis V. Saenz - Page 3        (DM-235)




                    (3) breaches any other condition of the agreement,
                      . .

Tax Code 0 33.02(a) - (d) (footnote added).

       The comptrolkr interprets section 33.02 to allow a delinquenttaxpayer who enters
into an insmllmentagreement to avoid the imposition of titrther penalties. A letter to the
tax assessor-wllector from the office of the comptroller states in pertinent part:
           Subsection (b) [of section 33.021 provides that interest accrues on
           the unpaid balance-the subsection does not provide for penalties to
           accrueonthatbalance.. . . We have wnsistently interpreted Section
           33.02(b) to allow a taxpayer to stop
                                              . the imposition of penalties on
           delinquent taxes by enteting mto an insmlhnent agreement.
           Throughout the Tax Code, the Legislature specifies “interest”when
           it means interest and “penalties”when it means penalties. Further,
           we think the clear intent of Section 33.02 was to allow a taxpayer to
           formally agree to pay delinquent taxes and avoid the imposition of
           further penalties or a suit to wllect taxes-a taxpayer would have
           little or no incentive to enter into an insmlhnent agreement if
           penalties wntinued to accrue or he wuld still be sued for wlkction.
           Uaderourimezpraation,atwpc?yacwldnotbe~leforthe                   15
           percent additionalpenalty ifhe entered into the instaumentagrmment
           before July 1. Section 33.02 does not permit penshies to accrue
           after the agreement is made and Section 33.07 does not permit the 15
           percentadditionalpenaltytoattachuntUJuly1.          Thishssbeenour
           wnsistent administrativewnstruction of the law.
Letter to Antonio Yzaguirre, Jr., Tw Assessor-Collector, Cameron County, from Ray
Bonilla, General Counsel, Comptroller of Public Accounts, dated April 16, 1993
(emphasis in the originsl).

        You disagree with the wmptroller’s wnchrsion. You contend that the phrase
“taxes that remain delinquent on July 1 of the year in which they bewme delinquent incur
an additional penalty” in section 33.07 refers to delinquent taxes subject to an installment
agreement. You base your contention on that fan that section 31.02(a), the provision
which establishes the date upon which tsxes become delinquent, sets forth cettain
exceptions, namely taxes paid under sections 31.02(b), 31.03 and 31.04, but does not
except taxes subject to an installmentagreement under section 33.02. We wncur with the
wmptroUer’sinterpretation of section 33.02, and tind your contention unpemuasive.




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Honomble LadsV. Saenz - Page 4       (DM-235)




       Fbst, we agree with the wmptrokr that it ia dkpoMve that section 33.02
acprrsslyprovidesthatimaenwntimreoto~eontheunpaidbalaaccbutdoesnot
dmitrlyprovidethatpwelti~wiUwn&etoiccrw.                 Again,subaection(b)ofsection
33.02 statesthat “[i]nrcrr.rraccruesasprovidedby Subsection   (c) of Section33.01 of this
wdeonthetmpaidbalancedtuingthepekdoftheylrrsment:                     (Emphasisadded.)
Subsection (b) does not provide that penalffes will wntinue to be imposed. Significantly,
rcction33.01ppovidertorbathtbercaurlofintaat~theimporitiw0fpeaaltia.
%bsection (a) of section 33.01, for example,provides:
              Adelitquenttaxincucsrpenaltyofsixpercentoftheamountof
          the~forthe~crladumonShitirdelinqucntpl~onepaccllt
          foreachdditionalmonthorportionofamonththetaxrem8ins
          unpaid prior to July 1 of the yeu in which it bewmes delinquent.
          However,ataxdeUtquentonJuly1incursatotalpenaltyoftwelve
          percentoftbeamountoftbede&nquenttaxwitbout~tothe
          mmberoftnontbsthetahasbeatdeUnquent.




       In~~webclim~itisinsieaificMtthlltpeaiw31.02(a)doesnotaccept
instdment agreements. Section 31.02(a) establishes the date upon which taxes become
delinquent. It does not impose pen&k, nor do the provisions it excepts.) The
imposition of penalties is speciiically lddrrsred in sections 33.01.33.02, end 33.07. We
w~withthecomprrolldsw~onthat~provirionsdoaot~aturingunit
to imposea penaltyadoptedpursunt to section33.07 on a taxpayerwi20hasenteredinto




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HonorableLuisV. Saenz - Page 5       W-235)




   mstabat agreemmt under section 33.02 prior to July 1 of the year in which the mes
ikatne delinquent.’

                                SUMMARY

              A delinquenttax penalty adopted under section 33.07 of the Tax
          Code does not apply to delinquent taxes subject to &aliment
          agramam entered into under section 33.02 of the Tax Code prior
          toJuly1oftheyeuinwhichthetucesbecMledelinqumt.




                                                  DAN      MORALES
                                                  Attorney Oeneral of Texas

WJLL PRYOR
FitSthSiStMtAttorlICyGenenl

MARYKELLER
Deputy Attomey Oend     for Litigation

RENBAHICK!J
State Solicitor

MADELEINE B. JOHNSON
Chair, Opiion Committee

PreprredbyMaryR(--
Assistmt Attorney Ckaaal




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