Honorable Robert S. Calvert       Opinion No. M-122
Comptroller of Public Accounts
Austin, Texas                     Re: Limitation periods
                                      for deficiency deter-
                                      minations and suits
                                      to collect Limited
                                      Sales, Excise and Use
Dear Mr.   Calvert:                    taxes.

     you have requested our opinion on the following question:
     Under the provisions of the Limited Sales, Excise and Use
Tax Act (Chapter 20, Title 122A, Taxation-General,Vernon's
Civil Statutes) as modified by Article 1.045 (added as a new
article in Title 122A by H.B. 144, Acts 60th Leg.R.S. 1967,
ah. 448, p. 1019, effective July 1, 1967), must a suit for
delinquent sales or use tax be brought within four years after
the tax is due and payable, or does the Comptroller have four
years in which to issue a deficiencydeterminationand there-
after have an additionalperiod of time in which to bring suit?
     You state that before the enactment of Article 1.045 it
was your position that you had four years in which to make a
deficiency determinationand thereafteran additional three
years in which to bring suit. This position was derived from
paragraph (0)(1) of.Artlclq 20.06.andparagraph (G)(1) of Article
20.09. The former imposes a fou&year.limitation period for
deficiencydeterminations,while the latter provides that if
"any amount required to be paid to the State under this Chapter
is not paid when due, the Comptroller may, within.three (3)
years after the amount is due," file suit. your position was
that the amount of a deficiency determinationwas not "due'
until the date specified in paragraph (E) of Article 20.08,
snu&th;~fore the suit limitationperiod did not begin until
         . Although there are no Texas casea on the point,
the wsition was suuoortedbv three cases of courts of Cali-
for&, whose sale;bd use 'taxstatutes contain similar limi-
tation provisions.




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Honorable Robert S. Calvert, page 2 (W-122)
      Paragraph (A) of Article 1.045 provides that, with certain
exceptions, the COSiptrOller shall "assess* any tax imposed by
Title 122A within seven years from the date "such tax is due and
payable," and that he may bring suit within the sam~period, but
that no action may be commenced after seven years “Ior such other
shorter period of time as may be provided in this Title) from the
date Such tax is due and payable*. (Underliningadded.) Row-
ever, paragraph (8) of Article 1.045 provides:

              *For the purpose of the Limited Sales, Excise and
         Use Tax imposed by Chapter 20 of this Title, the period
         of time provided by this Article shall be four (4) years,
         and any provision of Chapter 20 to the contrary is hereby
         repealed to the extent of, such conflict.*
        While Article 1.045 Speak5   of "assessment"and Chapter 20
Speak5   of "determination",it seems clear that    a "determination"
is an "assessment"as that term is used in Article        1.045. Par-
agraph (A) of Article 1.045 makes the limitationperiod for both
aBBeBBSientB   and BUit.5 t0 begin t0 run when ths tax iB due and
pByabh.      Paragraph (B) then expressly makes surperiod four
years   for the purpose of the tax imposed by Chapter 20. In view
of the express repeal of any conflictingprovision of Chapter
20, we believe the *four plus three" position is no longer ten-
able. This follows since the position depended on the limitation pe-
riod for suit beginning on the due date of the determination,
whereas Article 1.045 now expresslymakes the limitationperiod
for bringing suit to begin on the due date of the -    tax.


      There is the further question of the effect of the gshorter
period of time* provision of paragraph (A) of Article 1.045, in
view of the fact that the suit limitationperiod of Chapter 20
had been three years. tiowever, the anomaly of providing that
the period for making a determinationis four years but that
suit can be brought only during the first three years of that
period is avoided by the provision of paragraph (8) of Article
1.045 that any provision of Chapter 20 18 repealed to the extent
of the conflict.
         In.answer   to your question, it is our opinion that the effect
of paragraph (B) of Article 1.045 is to limit the time within which
a deficiency determinationof the tax imposed by Chapter 20 can be
made to a period of four years beginning when the tax is due and
payable,      and thatsuit to collect such tax Dust be brought within
the SW        period, exaept in the situation8 provfded for in para-
graphs (A)(11, (A) (21, (A) (31, (Cl, (El and (?I of Article 1.045.



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Honorable Robert S. Calvert, page 3 (U-132)

                             SUMMARY

          The effect of paragraph (B) of Article
    1.045, Title 122A, Taxation General; Vernon18
    Civil Statutes, is to limit the time for de-
    ficiency determinationand suit to collect
    the tax imposed by Chapter 20 thereof to the
    same period of four years beginning with the
    date the tax is due and payable, except in
    certain situations provided for in other para-
    graphs of Article 1.045.
                                          ry truly,



WW:dls                                        General of Texar
Prepared by Neil Williams
Assistant Attorney General
APPROVED;
OPINION COWMITTEE
Hawthorne Phillips, Chairman
Kerns B. Taylor, Co-Chairman
Bill Allen
Dyer Moore, Jr.
Malcolm Quick
John Reeve5
W. V. Geppert

STAFF LEGAL ASSISTAWT
A. J. CARUBBI, JR.




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