Hon. Robert S. Calvert
Comptroller.  of Public Accounts
Capitol Station
Austin, Texas
                              Opinion No. S-130~

                                Re:   Authority to refund monies under Article
                                      4388, V.C.S.,  when the monies were paid
                                      to the State pursuant to the protest.statute
                                      Article 7057’b, V.C.S.. and the protesting
                                      taxpayer failed to observe the requfre-
Dear Mr.     Calvert:                 ments of the protest statute.

               .~You have. re+zested an opinion of this office, and the tiiter bask
re,stated   the facts and the question, as he knows them to exis!, as fottows:

               The Coleman Gas Company made protest tax pay-
     ments to the Comptroller       of Public Accounts     under the now
     unconstitutional    “gas gathering tax.”    (Article ,7057f, Ver-
     non’s Civil Statutes)     The monies collected were placed ‘*
     by the Comptroller      in the “suspense   account.”    The gas
     company properly instituted’the       suit within ninety days
     after the protest payment; however, two subsequent tax
     payments were not properly set up by amendment             to the
     petition.   The gas company. recognizing        it could not te-
     cover these payments pursuant to the&ptotest statute,
     dismissed    its suit as to these two subsequent tax pay-
     ments and requested the Comptroller         to refund these
     monies by virtue of the provisions       of Article 4388, V.C.S.
     All the monies paid under pr%%t~have          remained in the
     “suspense    account.”

             The question is whether’s taxpayer initially pursuing his
remedy under Article    7057b, V.C.S., may abandon such a suit and seek
to have the tax payments refunded by virtue of Article   4388, V.C.S.

             We are of the opinion that once the taxpayer abandons its
rights under Article  7057b, the tax monies in the suspense account be-
come subject to the discretionary   action of the Comptroller   of Public
Accounts to determine   the monie~s’ status.  Therefore,  should the
Comptroller  determine   that the monies do not belong to the State a re-
fund should be made to the proper party as authorized by Artide      4388.
Hon. Robert     S. Calvert,   page 2 (S-130)




             There exists only one “suspense account” administered       by the
Treasury   Department.     Tax funds are deposited into this account for one
of two reasons:   (1) either the funds were paid under the protest statute
and are required by law to be placed in suspense,    or (2) the head of the
collecting department cannot determine the status of funds paid without
protest to the State.

             Article 4388 permits State departments    to deposit collected
monies of undetermined    status into the suspense account.   Upon the deter-
mination of the status of these monies by the department head, the portion
belonging to the State is deposited into the Treasury   and the ‘balance’ is
refunded to the proper party.

                The protest statute (Article  7057b), enacted subsequent to
.Article 4388, permits a protesting taxpayer the right to institute suit
  agiifnst the State; it requires that the tax monies be placed in the suspense
  &+ount and should the protesting taxpayer prevail the monies must be re-
 .fur@ed. Section 7 of Article    7057b reads as follows:
              ,u
                The provisions  of this law shall be cumulative of all
      laws relating to the payments of tares or fees of undetermined
      status and for the holding ther,eof in the suspense account fund
     .of’the State Treasnrer.”

The above quoted language reveals that the protest statute does not pre-,
elude the relief to whfch the taxpayer might be entitled under Article 4388.      -


                                      SUMMARY

               Upon abandonment of a suit instituted under Article         ,.~~
      7057b, V.C.S.,    thereby withdrawing from the Court’s
     jurisdiction    the authority to determine the status of the     .~    ’.
     tax monks     paid under protest, the taxpayer may have a
     refund of monies in the “suspense       account” of the State
     Treasurer,    upon a determination     by the Comptroller   that
     the monies do not belong to the State.

APPROVED:                                      Yours   very   truly.

L. Pi Lollar                             JOHN. BEN SHEPPERD
Taxation Division                           Attorney General

John Atchison
Reviewer

 J. A. Amis,    Jr.                               William     W. Guild
 Reviewer                                                   Assistant

 John Ben Shepperd
 Attorney General
