                                 AUCEPIN al.TEXAH
  WILL       WILSON
AlTOHNEY.SENERAL
                                    July 26, 1962

         Mr. Bruce Allen                     Opinion No. WW-1395
         County Attorney
         Waxahachie, Texas                   Re:    Whether a taxpayer is enti-
                                                    tled to discount under Arti-
                                                    cle 7255-b, Vernon's Civil
                                                    Statutes, or whether he must
                                                    pay interest and penalty un-
         Dear Mr. Allen:                            der submitted facts.
                We quote the following excerpt from your letter requesting
         the opinion of this office on the above captioned subject.
                         "On October 20, 1961, a taxpayer
                      mailed his check'to the Tax Assessor-
                      Collector of Ellis County In the amount
                      of $143.49 along with an application for
                      a poll tax recel t for him and his wife.
                      Included in the 143.4 were $3.00 (which
                      should have been$ $3.50 3 In payment of the
                      two poll taxes. Immediately upon receipt
                      of this check the Tax Assessor-Collector
                      returned it and the application for poll
                      tax receipt to the taxpayer with a note
                      explaining that the check should be in
                      the amount of $144.00 in order to pay
                      the ad valorem taxes and the two poll
                      taxes. The taxpayer did not open the
                      letter from the Tax Assessor-Collector
                      until May 5, 1962, when he was searching
                      for his poll tax receipt In order that
                      he and his wife might vote.
                         "It is the taxpayer's position that
                      he should bf allowed the discount under
                      Art. 725513, Vernon's Civil Statutes.

         1
             Article 7255b, V.C.S. provides, In part, as follows:
                      "All taxpayers shall be allowed discounts for the
                   payment of taxes due to the State and all governmental
                   and political subdivisions and taxing dlstrlcts of the
                   State, said discounts to be allowed under the following
                   conditions: (a) three (3%) per cent discount on ad
                                                                (Continue)
Mr. Bruce Allen, Page 2                  Opinion No. WW-1395


          While the Tax Assessor-Collector feels
          that he is not entitled to the discount
          and further that he owes the penalty and
          the Interest undsr the Art. 7336 Vernon's
          Civil Statutes.


' (Cont'd)
       valorem taxes due the State or due any governmental or
       political subdivision or taxln district of the State,
       if such taxes are paid ninety 790) days before the
       date when they would otherwise become delinquent; (b)
       two (2$) per cent discount on ad valorem taxes due the
       State or due any governmental or political subdivision
       or taxing district of the State if such taxes are paid
       sixty (60) days before the date when they would other-
       wise become delinquent; (c) one (1s) per cent discount
       on ad valorem taxes due the State or due any govern-
       mental or political subdivision or taxing district of
       the State, If such taxes are paid thirty (30) days be-
       fore the date when they would otherwise become delin-
       quent. . . .'
2 Article 7336, V.C.S., provides, In part, as follows:
          !I
           . . .
          "If any person fails to pay one-half (l/2) of the
       taxes, Imposed by law upon him or his property, on or
       before the thirtieth day of November of the year for
       which the assessment is made, then unless he pays all
       of the taxes (Imposed by law on him or his property),
       on or before the thirty-first day of the succeeding
       January, the following penalty shall be payable there-
       on, to-wit: During the month of February, one (1%)
       per cent; during the month of March, two (2%) per
       cent; during the month of April three (3s) per cent;
       during the month of May four (4%) per cent; during the
       month of June, five (5d per cent; and on and after the
       first day of July, eight (8%) per cent.


          "(d) All delinquent taxes shall bear interest
       at the rate of six (6%) per cent per annum from the
       date of their delinquency. . . .'I
Mr. Bruce Allen, Page 3                  Opinion No. WW-1395


             “Please advise if the taxpayer should
          be allowed the discount as contended or
          Is he required to pay the interest and
          penalty as a delinquent taxpayer.”
       In Attorney General’s Opinion No. WW-149, this office held
that where a~taxpayer had failed to receive a notice of the amount
of ad valorem taxes due for a certain year by reason of the fact
that It had been sent to a wrong address, the Tax Assessor-Collec-
tor had no authority to waive penalties and Interest which had ac-
crued subsequent to the time the taxes were due and prior to the
time payment was tendered by the taxpayer. In that opinion it
was pointed out that nowhere in the Constitution or statutes of
this State Is a Tax Assessor-Collector required to notify a tax-
payer of the amount of ad valorem taxes assessed against him and
his property on the current roles as a prerequisite to llablllty
to pay the taxes or the statutory penalties and Interest If the
taxes are permitted to become delinquent.
       In Muldrow v. Texas Frozen Foods, 157 Tex. 39, 299 S.W.2d
275 (1957), the Supreme Court held that a check delivered to the
collecting official on the last day allowed for payment of a cor-
porate franchise tax, but thereafter returned unpald~by the drawee
bank, did not effect a timely payment of taxes even though the
Instrument was dishonored solely because of a mistake on the part
of the bank and was paid when presented for payment a second time.
In the course OL’UUY op~riion,the court said at page 277:
             “The real Issue In the case Is whether
          the tax was paid when due. Respondent
          recognizes that If timely payment was not
          made, the penalty accrued by operation of
          law and could not be waived by any offl-
          clal of the State. It Is apparent that
          the money did not become available to the
          State until the check was paid on July 18th,
          but respondent contends that in legal con-
          templation payment was made when the check
          was delivered to the Secretary of State.”
       The court pointed out that It was generally held that In
dealings between private Individuals when a check Is accepted as
conditional payment and is paid in due course, the payment there-
upon begomes absolute and relates to the date of delivery of the
check.    The court stated that the application of this principle


3 Citing Texas Mutual Life Ins. Ass’n. v. Tolbert, 134 Tex. 419,
136 S.W.2d 584; 70 C.J.S. Payment, Sec. 24, p. 233; 40 Am.Jur.
Payment, Sec. 86, p. 775.
Mr. Bruce Allen, Page 4                         Opinion No. WW-1395


to the payment of taxes had been recognized in jurisdictions
authorizing
_           the payment of such
                             ._ obligations by check.
                                                    .~ The court
further pointed out tnat In at least in one jurisdiction the doc-
trine of relation back was employed even though the check was dis-
honored as a result of a mistake on the part of the bank. How-
ever, the court refused to extend the rule generally recognized as
applicable to Individuals to payments of taxes by check since in
the absence of a constitutional or statutory provision authorizing
payment in some other medium, taxes must always be paid in money.
The court said that a use of a check to pay taxes was always at
the risk of a taxpayer, for whose accomodation the receiving offi-
cial acts in attempting to collect the same.
       In the instant case, the taxpayer had the right to pay, in
November, one-half of all the tax owed; and had the remainder been
paid before the first day of the following February, no penalty
or interest would have accrued. However, the taxpayer made the
mistake in calculating the amount of the tax due. The Tax Asses-
sor-Collector did all he could do, under the circumstances, when
he notified the taxpayer by mail of the discrepancy In the amount
of the check and the amount of the taxes sought to be paid, Hence,
in this case, we must conclude in view of the Muldrow case, that
the penalty and interest cannot be waived or released by the Tax
Assessor-Collector.
                          SUMMARY
             Where taxnager mailed a ?heck in an amount
       insufficient to cover ad valorem taxes and poll
       taxes, and Tax Assessor-Collector returned the check
       by mail to the taxpayer because of such insufficiency,
       and taxpayer neglected to open said mail until after
       penalties and interest had accrued, the Tax Assessor-
       Collector has no authority to waive such penalties
       and Interest as have accrued.
                                    Yours very truly,
                                    WILL WILSON
                                    Attorney General of Texas


                                    By&<;lZ;T,&!f,        ,,
                                                           ~,,;3,.,
                                         Marietta McGregor Payne
                                         Assistant
MMcGP/Jp
APPROVED :
.




    Mr. Bruce Allen, Page 5             Opinion No. WW-1395


    OPINION COMMITTEE:
    W. V. Geppert, Chairman
    John Reeves
    Morgan Nesbitt
    Grady Chandler
    Coleman Gay
    REVIEWED FOR THE ATTORNEY GENERAL
    By: Leonard Passmore
