                      TIXEATTOIECNEY           GENERAL
                                  ~,PTExAS




         Honorable Robert S. Calvert
         Comptroller of Public Accounts
         Austin, Texas
                                             opinion NO. c - 298
                                             Re: Whether the Comptroller
                                                 of Public Accounta Is
                                                 Authorized to release
                                                 the Statels Hotel Occu-
                                                 p&my tax lien when the
                                                 a8ount of the'tu liabil-
                                                 ity claimed by the State
                                                 has'beeh paid under the'
                                                 protert statuta6t
         Dear   Mr.   Calvert:
.~              YOU   have requested our opinion on the following question:
                      May the Comptrollerof Public Accounts release,
                      the State's lien,created through the provisions
                      of Article 1.07, Title l22A, Taxation-General,
                      Veinon~s Civil Statutes upon payaent of the
                      Hotel:Occupancjt tax imposed by Chapter 23,
                      Article 23.02,Title 122A, Taxatloh-General,
                      Vernon's C%yil Statutes, upon payment under
                      the protest',statutes, Article 705i'band
                      Article 1.'05of eaid Title 122A, by the tax-
                      payer of the delinquent taxes, penalties end
                      interest claimed by the Comptrollerto be due?
                ~Artlclel.Om,, Tam&ion-General, Title 122A, provides in
         part that:
                       I1
                       ....Satisfactiomof auy state tax lien may
                      be shown by a receipt, acknowledgmentor release
                          ed by a representativeof the estateagency
                         t fil d such lieh, ahd acknowledgedor proved
     *                    reco:d as required for deeds."
                      (&aphasi.sAdded).


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      Hon. Robert S. Calvert, page 2 (c -,298    )


         Since the State Comptrollerof Public Accounts is the
     State agency which filed the Hotel Occupancy tax lien, it is
     therefore the agency empowered to Issue the release of said
     lien.
          As we have ascertainedthat the State Comptrollerhas
     the porrer to issue the release of the tax lien, the question
     for determinationnow becomes under what conditions   may the
     Hotel Occupancy tax lien be released?
          In the cases of Mllburn v. Athans, 190 SW 2nd 388 (Tex.
     Clv.    App.,
                1945, error dism.), Klstler v. Latham, 255 SW gg!J
      Tex.Com.App.1923),Stephens v. Moodle, 30 -0      (Tex.Civ.
     Lpp. 1895, error ref.), the.courts held that a,lien Is dls-
     charged by a proper and sufficientpayment of the debt or obli-
     gation which it secures. Thus, we must determine whether pay-
     ment of taxes, penalties, and interest under protest will be
     sufficientto discharge the Hotel Occupancy tax obligation
     owed to the State of Texas.
           The protest statutes,Article 705i'b,Vernon18 Civil Stat.,
     utes,   and Article 1.053 Taxation-General,Vernon's Civil Stat-
     utes, provide a statutorymeans whereby a taxpayer might
     contest any levy of tax or fee which he believes or contends
     ie unlawful. The statutes provide that the taxpayer is
     required to pay such amount as the public official charged with
     the collection thereof may deem to begdue to the State.
     Article 23.07, Title 122A, Taxation-General,Vernonls Civil
     Statutes,   which provides penalties for being delinquent in
     reporting and paying the,Hotel Occupancy tax states:
             '!Ifky person shall failto fil&.a report as
             required herein or shall fall Copay to the
             Comptrollerthe tax as imposed heFein when
             raid report or payment Is due)the shall for-
             feit five per cent 5s) of the amount due
             as a penalty, and ai ter the'first,thirty(30)
:.           dys he shall forfeit an additionaLfive per
             cent (5$) of such tax. Provided,.  however,
             that the penaltyi'shall never be less than One
             pollar  ($1). Delinquent, taxes shall draw inter-
             eet atthe rate of six per dent (6%) per annum
             beginning sixty (60) days from the date due."
     The civil penalties, imposed by this article and due when payment
     Is made, are also to be included before a payment under protest
     $6 a!sufficientpayment toauthorIze a,release of the State's lien.


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Hon. Robert S. Calvert, page 3 (C -298 )


     We believe that by payment under protest of the entire
amount of the taxes, penalties and interest -posed by Articles
23.02 and 23.07, and claimed by the Comptroller,the debt or
obligationdue the State is dischargedfor the purpose of
obtaining a release from the Hotel Occupancy tax lien.
     A case which Is quite similar in regard to the stiflclency
of the payment of the tax money into a repositorywhich the
taxpayer does not control is State v. Hoffman, 109 Tex.133,
201 SW 653 (1918). Under a fact situationwhich is analogous
to the one which we presently have here, the Supreme Court
upheld the lower court's ruling that payment Into the registry
of a court will suffice to extinguishthe State's lien. In
that case, the tax assessor-collectorrefused to accept the
tender of taxes because penalties were not Included. After
the State instituted suit for the~taxes,penalties and inter-
est, the~monies sued for were paid into the registry of the
court. The Court of Civil Appeals in the ssme case held that,
    "The lien was extinguishedby the tender, made good
    by the payment into ths registry of the court...."
    lgo SW 1163 (1916)
The Supreme Court stated,
    "With this true (tendermaintained through the payment
    of money into registry of the court), the lien upon the
    property for the taxes stood discharged,and the court
    properly refused to foreclose It." (at page 654)
     We conclude that payment of the tax under protest, penal-
ties and interest, as required by the statutes and demanded by
the State Comptrollerof Public Accounts, is sufficientdis-
charge of the Hotel Occupancy tax obligationto warrant the
release of the State's tax lien. Your queation Is therefore'
answered in the affirmative.
                   SUMMARY
         The Comptrollerof Public Accounts is
         authorleed to release the State’s tax
         lien created through the provisions
         of Article 1.07, Title 122A, Taxation-
         General, when the full amount of the
         Hotel Occupancy tax, penalties and inter-
         est demanded by the Comptrolleris paid
         to the State pursuant to the protest
         statutes.


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                                                   .   -




Bon. Robert S. Calvert -page4(C-296)



                                Pow6 very truly
                                WAGGONER CARR
                                Attorney General



   ,


HG:wh



OPMION CT
W. V. Geppert, Chairnrn
Bill Allen
Unward Shiver6
.%alcolmQuick
Joe Long
APPROVEDF0RTH.E A~Ol?WA7GEWERAL
By: Stanta Stone                         "3




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