Honorable Robert S. Calvert          Opinion No. M- 996
Comptroller of Public Accounts
Austin, Texas                        Re:   Time for refunding
                                           of tax payments
                                           under protest upon
                                           Comptroller's
Dear Mr. Calvert:                          determination.
     In response to your request, our Opinion No. M-140
(1967)  was issued, which In substance held that Articles
1..llA and 1.045, Title 122A, Taxation-General, Vernon's
Civil Statutes, authorize the Comptroller, within the limita-
tion period provided In Article 1.045, to pass upon the
validity of claims for refunds of taxes and fees paid to
him and to Issue warrants in payment of those found to have
been paid under a mistake of fact, or under a mistake of
law under duress.
     You now request our opinion whether payments made
under protest and.paid into the Suspense account, pursuant
to Article 1.05, of Title 122A, the claims for refund thereof
having been administratively determined by you to be valid,
can be refunded by you by warrants under each of the follow-
ing three situations:
          "a0 The determination Is made prior to expiration
          of the go-day period and before suit Is filed;
          "b. The determination is made after suit Is
          filed.
         "C. The determination is made subsequent to
         expiration of the go-day period and suit was not
         filed by taxpayer".
         In the event the Comptroller is not precluded
         by pendency of suit (with the taxpayer to whom
         the refund is contemplated) from adminlstratlvely



                            -4857-
Honorable Robert S. Calvert, page 2   (M-996)



          determining that as a result of mistake of law
          or fact the taxpayer is due a refund by reason of
          overpayment, how may the Defendant Comptroller
          afford relief to Plaintiff taxpayer without
          litigating the suit?
         "Would a settlement in court be necessarily
         required?"
Article 1.05, Vernon's Civil Statutes, provides for the
payment of certain taxes and fees under protest and prescribes
a ninety (90) day period within which suits may be filed
for their recovery.
     We construe your request to relate only to monies paid
under protest into and held in the Suspense account pursuant
to Article 1.05 of Title 122A, These monies may be refunded
by the Court under the provlsions of Article 1.05 (5) or
thev ma8 be refunded by vou under orior Attorney General
Opinion-Nos. w-w-116g(ighand WW-277(1957) where suit is
not pending; see also Daniel v. Richcreek, 118 S.W.2d 935,
937 (Tex.Clv.App. 1938, no writ)..
     Our prior Opinion No. M-140 (1967) does not relate to
monies paid lnto and held in the Suspense account. While
the monies therein considered alght have been paid originally
Into the Suspense account, our Opinion and Article l.llA
of Title 122A (and other Articles) therein considered make
plain that the source of the funds from which payment was
refunded to the taxpayer was 'I...from any funds approprlated
for such purpose," as authorized In Article l.llA.
     Your authority to make refunds from monies paid into
and held in the Suspense account Is a separate, unrelated
and supplemental auth,orityto the authority granted to you
under Article l.llA and considered In our former Opinion
No. M-140.
     The remedy afforded by Article 1.05 Is not exclusive,
but is cumulative. Union Cent. Life. Ins. Co. v. Mann,
138 Tex. 242, 158 S.W.2d 477 (1941). The provlslo: of
Article l.llA that payment of the refund shall be *.. from
any funds appropriated for such purpose" clearly evidences
the Legislative intent that the remedy afforded by that
Article is In addition to any remedy afforded by Article 1.05.



                            -4858-
Honorable Robert S. Calvert, Page 3   (M-996)


     The ninety (90) day period provided in Article 1.05
Is a limitation period for the filing of suit for recovery
of payments and has no bearing on the period in which the
Comptroller can refund a claim upon his own determination.
The llmltatlon period for an administrative determination
refund, as pointed out In Attorney General's Opinion
M-140, Is that period set out In Section (G) of Article
1.045, that is, the same period of time within which
the Comptroller may assess a deficiency with respect to the
tax in question.
     In answer to situations "a'!and "c' of your request,
you are advised that in view of the foregolng considerations,
the payments made under protest may be refunded In those
instances where the claims have been administratively deter-
mined by you to be valid, except where the same Issue of
legality Is the subject of pending litigation In which the
Comptroller is a party, and provided further that the
period of llmltatlons for the administrative refund has not
          If the period of llmitatlon has expired, you would
~~P$%;bited   by the terms of Section (G) of Article 1.045
from issuing any refund unless the taxes were paid under
protest and their refund or credit be decreed by order of
the Court.
     It should be noted In connection with situation 'c'
that if the 90 days period for filing suit has expired and
suit was not filed, Article 1.05, Section (5) requires
that under such circumstances the account be transferred out
of the Suspense fund Into the a proprlate fund in the state
treasury. See also Article 438E;, Vernon's Civil Statutes.
Thus the Suspense fund Is no longer available out of which
the taxes may be refunded.
     Our answer to your sltuatlon "b" Is that a warrant
for refund or tax credit may not be issued for so long as
the case is pending in the court. The court has continuing
jurisdiction of the parties and the subject matter until
that jurisdiction Is terminated..
     Article 1.04 (l), Title 122A, in Its relevant portion
reads,
          "All delinquent State taxes and penalties therefor
          due and owing to the State of Texas, of every



                            -4859-
Honorable Robert S. Calvert, page 4    (M-996)


         character whatsoever, ... and all other State
         taxes which become delinquent other than State
         ad valorem taxes on property shall be recovered
         by the Attorney General in a suit brought by
         him in the name of the State of Texas,”
         IEmphasIs Added)
     Article 1.05 makes two relevant provisions. In its
subdivision (1) is the provision that suit under that
Article
          II
           ... shall be brought against the public official
          charged with the duty of collecting such tax
          or fees, the State Treasurer and the Attorney
          General. ...‘I (Emphasis Added)
In subdivision (5) is the following,
         “If suit is not brought within the time and
         within the manner provided In this Article, or
         In the event it finally be determined in such
         suit that the sums of money so paid ... belong
         to the State, then and In that event it shall
         be the duty of the State Treasurer to transfer
         such money from the Suspense account to the
         proper fund of the State ...”
Also Daniel v. Rlchcreek, supra, in accord.
     The Attorney General is both party defendant and legal
counsel for all party defendam      Our opinion is that
any amicable settlement of the claim by the parties plaintiff
and defendants during pendency of the suit must be with
his joinder and consent.
     However, you are further concerned and inquire whether,
in the event the Comptroller upon further deliberation
concludes that the taxpayer is due the refund or credit as
a result of mistake of fact or mistake of law,the matters
must necessarily be litigated or a court settlement Is
necessarily required before the plaintiff taxpayer may
obtain any relief. As long as the suit is in court,




                             -4a60-
Honorable Robert S. Calvert, page 5     (M-996)


the matter would have to be decided and disposed of by
final Judgment entered in the cause. On the other
hand, in the event the suit Is dismissed and is no longer
pending, then the taxpayer Is not necessarily precluded
from perfecting his claim with the Comptroller, who may
then approve the same if he administratively determines
that refund Is due by reason of overpayment caused by
mistake of fact or law, and the Comptroller may cause
a warrant to be issued for the refund, payable out of the
Suspense fund. Attorney General Opinion WW-277(1957) and
ww-116g(1961) 0 This relief Is available only If the
funds are still In the Suspense account.

                       -SUMMARY-
               Taxes and fees paid to the State Comptroller
          under protest pursuant to Article 1.05, Title
          122A, Taxation-General, V.C.S., may be refunded
          upon his administrative determination within the
          period in which he may assess a deficiency
          for the tax, without the necessity of a law suit
          by the taxpayer. Art. 1.05 and Attorney General
          Opinion Nos. WW-277(1957 and WW-1169(1961).
               So long as a law suit is pending In Court,
          a warrant for refund or tax credit may not be
          issued. If the suit Is dismissed, the taxpayer
          is not necessarily precluded from perfecting his
          claim with the Comptroller, who may then approve
          the same if he admlnlstratlvely determines that
          refund is due by reason of overpayment caused
          by mistake of fact or of law and the Comptroller
          may issue warrant for the refund payable from
          the funds still held in the Sua ense account.
                                      ,/.9
                                    Yours very truly,

                                       ./f$?&&
                                             (L&g~.
                                       Attorney Gkeral   of Texas
                                          i/
Prepared by R. L. Lattimore
Assistant Attorney General


                              -4861-
Honorable Robert S. Calvert, page 6   (M-996)



APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
James Eiroadhurst
Arthur Sandlln
John Banks
John Reeves
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First   Assistant




                             -4862-
