Untitled Texas Attorney General Opinion ( 1991 )

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DAN MORALES December 6,199l
ATTORNEY
GENERAL
Ms. Jeamrene Fox Opinion No. DM-63
Acting Administrator
Texas Alcoholic Beverage Commission Re: Rate of interest on delinquent tax
P.O. Box 13127 payments under section 32(b) of the
Capitol Station Bingo Enabling Act, V.T.C.S. art. 179d
Austin, Texas 787113127 (RQ-210)
Dear Ms. Fox:
You have requested our opinion on whether article 13 of House Bill 11,
passed during the First Called Session of the 72d Legislature, raised the interest rate
on tax payments due under section 32(b) of the Bingo Enabling Act (the act),
article 179d, V.T.C.S., from ten percent a year to twelve percent a year,
compounded monthly. If we conclude that House Bill 11 did change the interest
rate under section 32(b) from ten percent a year to twelve percent a year,
compounded monthly, you request our opinion as to when the interest begins to
accrue.
The act imposes a five percent tax on all taxable gross receipts1 from the
conduct of bingo games. V.T.C.S. art. 179d, 9 2A(a), (b), amended by H. B. 11, Acts
1991,72d Leg., 1st C.S., ch. 5.9 11.02, at 183. AU licensees conducting bingo games
must submit quarterly financial reports to the Texas Alcoholic Beverage
Commission (the commission) and the comptroller of public accounts and must
submit quarterly gross receipts tax payments to the commission. V.T.C.S. art. 179d
55 2A(c), 23(a); see uLro 34 T.A.C. 9 3.550 (requiri: g quarterly reports for gross
receipts tax). The commission deposits all tax payments it receives pursuant to
section 2A of the act into the state’s general revenue fund. Id 5 2A(d). Under
section 29 of the act, any person who fails to file a quarterly return or to pay the
required taxes in a timely manner forfeits five percent of the amount due as a
penalty, and after thirty days have passed, the person forfeits an additional five
percent. Id 9 29(a). In addition to the penalty, the act provides that delinquent
taxes shall draw interest beginning sixty days from the date the taxes were due. Id
%29(b).
1% first S~~,OOO of gross receiptsfrom the conduct of biio within each reporting period is
exempt from ‘he tax. V.T.C.S. art. 1% 0 21.
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Ms. Jeannene Fox - Page 2 (DM-63)
The act also provides the commission with the power, should it believe that
the collection of any or all of a licensee’s tax payment will be jeopardized by delay,
to determine the amount of tax the licensee will owe. Id 8 32(a). This amount of
tax becomes due and payable immediately upon the commission’s determination of
the amount due. Id Upon being served with notice of the commission’s jeopardy
determination, the licensee has twenty days in which to file a petition for
redetermination or pay the tax. Id 3 32(b). If the licensee fails to pay the amount
the commission has specified within twenty days and fails to petition for
redetermination, the commission will impose a delinquency penalty of ten percent
of the amount due. Id In addition, interest begins to attach to the delinquent
principal and the penalty due. Id.
Before the legislature enacted House Bill 11, both sections of the act
prescribing interest on delinquent tax payments, sections 29(b)r and 32(b),3 specified
an interest rate of ten percent a year. In article 13 of House Bill 11, however, the
legislature amended section 29(b) of the act to state that “[dlelinquent tax shall draw
interest at the rate provided by Section 111.060, Tax Code, beginning 60 days from
the due date.” H. B. 11, Acts 1991,72d Leg., 1st C.S., ch. 5, $ 13.04, at 185. Section
111.060(a) of the Tax Code also was amended in article 13 of House Biil 11 so that
it now reads, ‘The yearly interest rate on all delinquent taxes imposed by this title is
12 percent, compounded monthly.” Id $13.01, at 185. In addition to amending
section 29(b) of the act and section 111.060 of the Tax Code, article 13 of House Bill
11 amends delinquent tax provisions in other sections of the Tax Code, the Public
Utility Regulatory Act, and V.T.C.S. article 6060 so that all of them either
incorporate, as did the amendment to section 29(b) of the act, or parallel section
111.060 of the Tax Code. See id 0 13.02, at 185 (amending section 157.204 of the
Tax Code to incorporate interest rate set in section 111.060’of the Tax Code); id
5 13.03, at 185 (amending section 158.151(a) of the Tax Code to incorporate interest
rate set in section 111.060 of the Tax Code); id 0 13.05, at 185 (amending section 79
of Public Utility Regulatory Act, V.T.C.S. art. 1446c, to raise interest rate on
delinquent fees from ten percent per annum to twelve percent per annum,
compounded monthly); id B 13.06, at 185 (amending section 4(b), V.T.C.S. art.
6060, to raise interest rate on delinquent taxes from ten percent a year to twelve
percent a year, compounded monthly).
*Before the legislature enacted House Bill 11, section 29(b) of the act read, “Delinquent tax
shall draw interest at the rate of 10 percent a year, beginning 60 days from the due date.’
%edion 32(b) of the act reads, in pertinent part, ‘[IInterest at the rate of 10 percent a year
shall attach to the amount of the tax or the amount of the tax required to be collected.”
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Ms. Jeannene Fox - Page 3 (DM-63)
Article 13 of House Bill 11 does not expressly amend section 32(b) of the
act.4 As a result, the interest rate on delinquent tax payments due under section
32(b) is lower than the interest rate on delinquent tax in all of these other
provisions, most notably section 29(b) of the act. Prior drafts of final House Bill 11,
committee reports, and bill analyses make no mention of section 32(b) of the act;
thus; we cannOt infer that the legislature intended to amend section 32(b), but
simply overlooked it in the final bill. Consequently, only if we find some evidence of
a legislative intent to raise the interest rate in section 32(b), through statutory
construction of the pertinent sections of House Bill 11 can we read a twelve percent
interest rate into section 32(b).
When attempting to discern legislative intent from the words of a statute, we
must presume that at the time the legislature enacted the statute, it knew of the
existence of previously enacted statutes. See Gamer v. Lumberton Indep. School
Dirt., 430 S.W.2d 418, 423 (Tex. Civ. App.--Austin 1968, no writ); City of Irving v.
Dallas County Flood Control Dirt., 377 S.W.2d 215, 219 (Tex. Civ. App.-Tyler, writ
granted), rev’d on other grounds, 383 S.W.2d 571 (1964); Canode v. &well, 172 S.W.
142, 146 (Tex. Civ. App.-Amarillo 1914, no writ); Attorney General Opinion
V-1215 (1951); at 2. We also must presume that every word the legislature excluded
from a statute has been excluded for a purpose. Cameron v. Terre11& Garrett, Inc.,
618 S.W.2d 535, 540 (Tex. 1981). Thus, unless the unamended section conflicts
hopelessly with provisions House Bill 11 expressly amended, we cannot insert a new
requirement into the statute. See Cameron, 618 S.W.2d at 540; Canode, 172 S.W. at
146.
In addition to the presumption that the legislature knew about section 32(b)
of the act when it enacted House Bill 11, the legislature’s express amendment of
4Section 32(b) is not part of title 2 of the Tax Code, the title of which section 111.0&l of the
Tax Code is a part.
Section 33 of the ad states:
Subtitle B, Title 2, Tax Code, applies to the admiiatioo, cokctioa, and
eaforwment of the taxes authorized or imposed under this Ad except as
modified by this Act. (Footnotes omitted.)
It has been suggested that section 33 raises the inter& rate in section 32(b) because the rate of interest
set in 111.060 of the Tax Code would applythroughoutthe act. However, as we discuss infm, because
the IegisIatwe expressly raised the delinquent tax interest rate in section 29(b) while leaving the
delinquent tax interest rate in section 32(b) untouched, we believe the legislature intended section
32(b) to modify the provisions of subtitle B of title 2 of the Tax Code.
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Ms. Jeannene Fox - Page 4 (DM-63)
section 29(b) of the act to incorporate the higher interest rate, as well as other
amendments to the act elsewhere in House Bill 11,s indicates that the legislature
indeed was aware of the act’s provisions when it enacted House Bill 11. By explicitly
amending section 29(b) while leaving section 32(b) of the same act untouched, we
believe the legislature purposefully chose not to raise the interest rate in section
32(b). Furthermore, section 32(b) in its unamended state does not render any other
statutory provision inoperable, nor is it rendered inoperable by any other provision.
In sum, we find no evidence that the legislature intended to raise the interest rate
section 32(b) attaches to delinquent tax, and we therefore conclude that the interest
rate in section 32(b) should remain ten percent a year. Because we reach this
conclusion, we need not answer your second question.
SUMMARY
House Bill 11, Acts 1991,72d Leg., 1st C.S., ch. 5, at 134, did
not amend section 32(b) of the Bingo Enabling Act. Accord-
ingly, the interest rate on jeopardy determinations under section
32(b) of the act remains at ten percent a year.
Very truly yours,
DAN MORALES
Attorney General of Texas
%I addition to explicitly raising the interest rate in section 29(b) of the act, the legislature
amended several other sections of the act in article 11 of House Bii 11. In section 11.01 of House Bi
11, the legislature amended section U(d) of the act to increase several of the fees for licenses to
conduct biio and commercial Licenses to lease bingo premises. In section 11.02 of House Bii 11, the
legislature amended section 2,4(b) of the act to increase the amount of the gross receipts tax from two
percent to tive percent of the taxable gross receipts. In section 11.03 of House Bii 11, the legislature
added section 2B to the act. The new section imposes a tax on the rental of premises for the conduct of
bingo games. In section 11.031 of House Bill 11, the IegisIature added section 19b to the act. The new
section requires a licensee to collect from each person who wins a prize in a bingo game a fee equal to
three percent of the amount or value of the prize. In section 11.04 of House Bii 11, the legislature
made a small word change to section 20 of the act and amended section 31 of the act to incorporate a
reference to the new tax on the rental of premises for the conduct of bingo games. Considering aU of
these amendments to the act, in addition to the amendment of section 29(b) of the act, we condude
that the legislature, if it had wanted to raise the interest rate imposed in section 32(b) of the act, would
have amended it explicitly.
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Ms. Jeannene Fox - Page 5 (DM-63)
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Kym Oltrogge
Assistant Attorney General
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