                                        No. 310%
                       Res    Date or payment        or    unemployment
                              oompenratlon       tax a8     8frectinp the
                              tollins 0r      limitation      undar
                              Artiola   SWlb-12(j)        Yarnon's
                              Annotated   Civil    Statutes,




Texaa Unemployment           Compenretlon      Cos&aslon
Brown Duilding
Austin,       Texas

Gentlemen:

                                    Opinion      No. O-42618
           we have received and aarerully  considered                      your
opinion J:equest of recent date.  In order to ruiiy                       eat  out
the   facts     involved,    we quote     your    letter    in full:

              "This request     has reterenoe   to the refund provi-
       dons     cf the Texas Unenploymnt Con?ensstlcn .$ct
       (Article    522lb-12(j),    Vernon'e   Annotated Civil   Stat-
       i.mu Or n~3a, 193).           You have prnvionaly   iercued
       your opinions Wo. O-459 on Maroh 17, 1939, and O-1705
       on Earoh 7, 1940.        Those: two opinions nre oited    in
       your opinion     No. O-2183 dated June 13, 1940,

              *In the year 1940 the Conrmlaeion esaerted         tax
      liability     aGainat X impa~y    for unsn~lo~rment Taxes
      ior the period January 1, 1937          through December 31,
      1059.      X Comaany denied liabilfty but in 1940 mid all
      of the taxes which the Commission claimed were-owing.
      At 'its time it paid th,e terns it filed        an applioatlon
      for refund in accordanos      with the terms of the Unemploy-
      morit *let.    In 1942 c I"edaral oourt flnelly       estublisbacI
      the correotneea      or the oorporatlonls     contention     of non-
      liability.       (The oaae iu which t?e -;,uestion %%a deoldud
      wae not a tsx suit by thie State for unemployment               ttlxes.)

            '*Onthe basis of the deoioion    or tha Federnl court,
      this ~ormtio8fon told the % Company    that it wao not an
      onployer  during tha period January 1, 1937, Tao December 31,
      lY39, and that the refund application      would be gmnted
      with rereroncs   to tare8 duo after   &larch31, 1938. This
      was for the reason that the refllnd provision     of the Texae
      law, as it existed     prior to April 1, 1939, iqcossd a ona-
      yuur limitation   perlod'ror   the filing of npplloatlons.
.

               *The X corporation     110~ contends    t&it            since    taxes
          duo prior   to April 1, 3938, Wro, paid the                  aommiaeion
          at a time when the n~pllcstlon       for refund              with reepeat
          to them was barred,    n altucrtlon    ie Weat                which demndo
          that tha statute    bo not interpreted     to bar              recovery     of
          suoh taxsa.

                 *?ie ahall appreciate    your oplnlon an to the cor-
          rectness    or our    oaition in denying the refund of taxea
          due prior    to Apr f 1 1, 1938."

                St would seem that o~lniona          Numbers O-459 and
    O-1765 have anamred        inferentially      the question     expressed  In
    your oplnlon    request.      Bowever, it 18 now smarted           that 4
    differout   conoluslon      ahould be reached beoauae the oontribu-
    tlone allegsd    to be due for the perfod         prior   to April 1, 1959,
    were paid in 1940 rather than in that psrlod.                In order to
    fully   answer thla oontention,         we reel that a ahart review of
    the applioable     statutes    and our previous      rulings    will   be
    profitable.

               Our opinion    No. O-459 dealt with a situation        where
    the aomnlesion   was aeked to rerund ooatrlbutZonr          regularly
    paid by the supposed employer        which were due prior to one
    year from the data    or  the ti piioatlon     therefor.   At the date
    of this opinion,   Section   12 9 d) of Artlole     552lb, Ysmon~s
    Annotated Civil   Statutes,   was in effeot      and it reads as folloas:

                 "Refunda:       fr   not   later   than (1) year       altar  the
          date   on which     any oontrlbutions         or intereat      t!mreon
          ~~~*~~t:~~~srl~h~a~~Se~~~~                             5uch yy;p;:;;;,-
                                                                cntlo~
          nent thereof         In commotion        with subsequent        coz"&ributio?i-
          payzmtn,         or for R r13ruhd theroor          bnofiuso such sdjustmeat
          cannot be xde,           anA the Zo.mieeion         shall. deternine       that
          suoh   contributione          Or  lntcrost    or any portion        thereor
          wae erroneously          collected,      the coumlloaion rSnl1 allow
          such enplcym- to rake an HU,jurct.ment thereof,                   witizout
          lnterast,        in connection       with subsequent       contribution
          pnynents by hix,          or if such adjustmant           can not be made
          the GomIssriun         shall refund said amount, wlthcut                interest,
          from the fund.           For like     cause and wlthin        the.samo gcrlod,
          udjutitxent        or refund nap be HO mnde on tha Comisslon'o
          own initiatlva.*            (!:3;phosls    s~~ppllad)

                The Attorney   General held that the Comis8ion   could
    not leeally   refmd   contrlbutlons  which wero due prior  to one
    yam frm     ths date of applfca.tion   thereror. In the course of
    the optnion 'tie find tho following    languagei

                 *One of the meet signlfioant    provisions    of Seotion
          14(d) 1s the phrase 'the date on which say contributions
          or interest     thereon became due.'   The *due* data rather
          then the Gate of peymont is cortrolling.          X0 csstter when
          the oontributions      em paid, the one (1) year period of
          limitation     apainat refunds beglno to operate     in favor of
          t”?o atata ‘after     the date on which my contributions      or
          intareet    t5erocn   became due.‘*
.
    -                Based on the same faatual        data aubmittbd in Opinfoa
        Fib. I)-459, another     opinio,n request   rat received      by the Attorney
        General in which the main problem wes the effeat                of the aaend-
        ment of old Section       la(d)   Lo new Section    12(j),    effective
        April   1, 1.939.    Althou$h there is some slleht         difference   fn
        verbiage,    the legal effect       of both statutrs    nppsarf? to be ths
        same, exaeptiug      the ahange in tha period        of Elmi?ation.     Saa-
        tlon   U(j)    1s still   in effect    a&d roade as followsr

                      *vthere any employing         unit     has made e payment to
              the   Commlaelon      of   contributions        alleged     to be due, and
               it i5 later      determined      that such contributions            were
               not due, In whole or in part,               the employine      unit   mnklng
               suah payment may make appllaatton                 to the Cofm~ineion for
              ,an adjustment       thereof    in connection         with contribution
               payments then due, or for a refund tharsof                    because such
               adjustment      oannot be made and ii the Cardsalon                   shall
               determine     ,that such ao~ntributlons           or penalty
               portion     thereor   were erron.eoualy         aolleoted,     ih?Csiiie-
               slon oha3.1 allow suah employing unit to meke an edjust-
               ment thsreof      without    intereet       in oonneation      with apntri-
               bution payments then dua by such employing unit,                      or if
               euah adjustment        oennot be made, the CWrsfon                  shell
               refund said amount without             interest     from the Fund. oro-
               vid6a thet no application            for adjustment         or rerud      shall
              Ger     be considered       by the ~ommlsalon unless            the ache
               shall have besn tiled         within      four (4) years from the
              aats     on whiah such contributions             or penaltie@ would
               fieve becoua due, had suoh contrlbutlona                  been legelre
               colleatlble      by the ConunlsBion from suoh omploping unit.
              ?or like ceuse,        and within       the WJJU~period,        adjustment
               or refi;nd .~ay be so made on the Comlssionis                   own inltla-
               tive.”    (Emphasis supplied)

                   The resulting      opinion   being 710. O-1795, held that
        the new statute    had’no retroaatlve      terms and that it was in-
        tended to be prospective       In operation.     Consequently    the
        claimant gained no new rkghte by the repeal OS old Section
        12(d) and the passage of Eec,tlon 12(J).          The holding    and
        reasoning  in prior    opinion No. O-459 was reaffirmed,         2nd the
        suppoasd employer was apaln denied a refund of contributiona
        becoming due prior     to one year from tho aat        of application
        therefo?.   h?.rrin, emphasis was plnced on tb3 fact thet inso-
        far as the beginning     of’ the period of limitation       wae concerned,
        the due date of the contributions         was the controlling     factor.

                    The Texas Unemployment Compensation Comnisslon        has
        uniformly   int.erpreted    the applicable   statutes to mean that the
        limitation    period   should begin on the date that tb.e oontrlbu-
        tion become due.       See Regulation    30, adopted July ?, 1.837, and
        iiogulstion  39, adopted ;eptembsr       5, 1939.

                     Since  every opinion      by tho .httornsy General and
        every regulation      by tLe Cammlsz.lon, doslinG, vrlth the above
        set out atatut&s,      have omphsolzed the faot that the beginning
        or the running of the period          of limitation     is the rlus date
        of the contributions,       we are not wlllln~       tc say now that the
        date of psynent Is controlling.            Vie do not believe     t?at a
        lsgislntlve    lntznt   to dlf’fersntiqte      between,   an,! faVor,    a
        claimant u.ho has not regularly          paid the contributions       lllep&ly
        dl;s end one’ ‘*ho has rs~ulnrly       paid his taxes,     c8n bs ~BRI: into
        the nttltutsn.     Cort:<lnly   ths oxpr383     t+rns of t!ie nt9tutes
        Involved    make no cacti dlatinctlon.
           Tou are, thorsfore,    s8virsd  that the claim pre-
sented  by the Y Company has bosn borrsd by ths O&rmk of old
seotion  12(d), Artiole  522l.b. Vex~on~8 Annotated 01~11 Sk-
tutea,  and that ths Stnclllrraion adopted the 6orrWt    position
In denying ths refund of taxI88 dua prior to Apxil 1, 1038.
                                            Pour8 very   truly




                                     BY
                                             /a/   ‘Fioodrow Edward8
                                                         A88irtant




                                      Gerald 0. MOM
                                      Attorney General     of Tsraa




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