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                    dune.29, 1948

Hon. Harry Ben&e Crazier, Chairman
Texas Employment Commlssiotl
Austin, Texas
                            Opinion No. v-620
                            Re: The authority of the
                                Texas Rmployment Com-
                                mission to grant a re-
                                fund of taxes volun-
                                ~tarilgpaid, upon a
                                finding that an incor-
                                rect rate of tax was
Rear ~#r.Crazier:               paid.
          We refer to~your letter wherein you req,uest
the opinion of this office concerningwhether the Tex-
as Employment Commission has the power, rightor au-
thorlty~to grant under Article 5221b-12(j),V. C.~S.,
(now Article 5221b-12(j) (l), V. C. 9.) a refund of
unemploymentcompensation taxes as applied for by
Consolidated Steel Corporation.
         As to the circumstancessurroundingthis
application for a refund, we quote from your letter
as follows:
         '"TheConsolidated Steel Corporation
    was assessed by this Commission unemplog-
    ment compensation taxes forthe'%yearof
    1944 at a rate of 2.7s. The Corporation
    voluntarily paid the taxes for the first
    quarter of this year at the rate of 2.7s.
    At a later date and during the second
    quarter of 1944, the Corporation decided
    that its rate for 1944 should be 0.5s ln-
    stead of 2.7% and paid its taxes for the
    second quarter of 1944 at the rate of
    2.7$, but under protest, claiming the cor-
    rect rate at which it should pay its tax-
    es for 1944 was 0.5%. Suoh was likewise
.       .
    *



            88
                 Hon.'Harry Benge Crosier, Page 2 (v-620)


                        the procedure It followed for the taxes
                        that accrued during the third and fourth
                        quarters of 1944.
                             “Suit was Instituted under Article
                        7057b for the recovery of.the taxes paid
                        under protest for the second, tI$rd and
                        fourth quarters of 1944, e e D
                           "ConsolidatedSteel Corporat'io'n,pr.e- ,,
                    *vailed in the suit brought for the recov-
                      erg of the taxes paid under protest for
                      the second,~third and fourth quarters of
                      1944. ‘Nowthe Corporation comes before
                      this,Commissionand seeks a refund under
                     particle522ib-l2(,j~.)
                                          of the taxes volun-
                      tarily paid for'the first quarter of 1944
                      In excess of t'computationat the rate of
                      0.5% . *:.;m,
                                 .
                              .,
                           The'~exas'EmploymentCommission is given
                 the'authorityto !&ke~refunds by Artlc~e 5221b;l:2(j),~
                 (l), which reads:
                   :.        “me,e   ‘aby,,   &&yi&:   igit   &~;na&   a
                                                                              t
                        p&m&t to'th.e.Comviiss,lon~,,'of
                                                      contr~ibut$oqq ~., ..
                        alle'gedto,be due, and Iti'is J.a%erdeter-
                        mlped that''such,contributionswere'not!due.,.
                        id 'wholeor in'part, the emp~oy@ig'unit'.:.j~. :.
                        making such payment.may make ,applic,ation :,
                        to the Commission for an adjustment there-
                        of..i.nconnection with contribution.pay-
                        ments then',due‘,or for a refund thereof.
                        becauh   sudh adjustment cannot.be made',.~ :.I:,
                        and if~the Commission shall determine that
                        such contributions,:or penalty,nor,a,ugpor-
                        tion:thereof wereerroneously .coQected,
                        the Commission shall allow such,employzng,'  :.
                        unit to make an adj.ustment thereof With-
                        out i'uterestinky                contribu- :
                                         connection with'.
                        tionpayments then due by such emplogi,ng'~
                        unit, or,,if such adjustment cannot be,
                        made, the.Cdinmiss~oh~shall~refund said ,a-
                        mount witpout 'interestfrom the Fund,:pro-",.,
                        vlded that"no applloation foradjustment.
                        or refund 'shall.everbe.~consideredby'the
                        Commission unless the same.shall have been
                        fli& ._.
                               within.~four:
                               .'          (9).,years,fromthe'~date ..
                             <,.: ; 1.: -;,: ~~ . ,!',::,,I.
                                                          ,5',',.
                                                                :':
Eon. Harry Benge Crozier, Page 3'(V-620)                89


       on which such contributionsor penalties
       would have become due, had such contribu-
       tions been legally collectibleby the Corn-
       mission from such employing unit. For
       like cause, and within the same period,
       adjustment or refund may be so made on
       the Commission's own initiative."
          Unquestionablythis article gives the Com-
mission the authority to make adjustments or grant
refunds of taxes where it has been determined that
such~taxes have been erroneouslycollected. As to
the application of this statute, this Court in the
case of ~Jamesv; Consolidated Steel Corporation,
19.59. W. (2d) 955, refused, R. R. E., held that it
-"relatesto errors made either by the contributor
or by,the.CommisslonIn the calculationor collec-
tion of such taxes which have been paid voluntarily."
           It has been determined that the taxes for
which refund is here sought have been erroneously
collected under the provisions of the Texas Unem-
ployment CompensationAct. Rates at which taxes are
paid are computed upon a calendar year basis. Since
the Court lnthe,case of James v. Consolidated Steel
Corporationheld that the rate at which Consolidated
should have paid its taxes for the last three quar-
ters of 1944 was .5$, it necessarilyfollows that the
rate .at which it should have  id its taxes for the
first quarter of 1944 was .5r Instead of 2.7s; the
rate at which itspaid the taxes for this quarter.
          It is apparent from your request'thatCo.n-
solidated'sapplication ~fora refund relates'to tax-
es voluntarily paid through,errorsof the contribu-
tor or the Commission in the calculationor collec-
tion thereof.
                               _.
          Based upon the foregoing, it is our opinion
that the Texas Employment Commissionhas the ~power,
right and authority to grant the refund as applied
for by Consolidated Steel Corporation.
          The delay.in replying to this request has
been occasioned by careful study and briefing and
the holding of numerous conferenceswith reference
to every phase of this question. As requested we
are returning the application attached to your let-
ter.
90       Eon.~Harry Benge Crazier,,Page 4 ,(v~620)


                             SUMMARY
                  Th T&as'BmploymelatCotiis~sio~~~~s
             the power, right and authority under Art.,
             5221b-12(j) (l),,V. C. S., -togrant a re-,
             ‘fundof unemploymentcompensationtaxes
             erroneouslypaid.                ,



                                       Very truly.yours,       .~
                                  ATTORNEY GENERAL OF TEXAS~



                                             Robert 0. Koch
                                                 Assistant




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