Case Information
*1 Opinion No. O-7341 Hon. Geo. H . Sheppard
Comptroller of Public Re: Approval by Comptroller of a claim
Kccount s riust in, Texas for refund of tax paid on motor fuel
thereafter sold by the claimant ex tax to aircraft owners when the claimant can make oath that the motor fuel was Dear Sir: actually used for non-highway purposes? of August 5, 1946, you have requested
In your letter an opinion from this office relative to the above subject and in your letter you have presented two specific questions. The first of these asks whether the Comptroller can “legally approve a claim for refund of tax paid on motor fuel thereafter sold by the claimant ex tax to aircraft owners when the claimant can make oath that the motor fuel was actually for non-highway pur- poses.” The second question is conditioned on an affirmative answer to the first. Specifically, two cases have occasioned your and the paragraphs of your letter presenting them request are quoted:
“In the first case, an airport operator has purchased large quantities of av,iation refund dealer in Texas obtaining an invoice of exemption for the purpose of filing claim for refund of the tax paid by him as soon as the motor fuel has been used for non-highway purposes. The operator, however, did not use all of the in his own aircraft but he sold a large part of the to various other ai-craft owners who fueled their planes at his field. In this instance the airport opera- tor contends that he did not collect the tax from the as he resold the fuel although the records show that the profit he added to the original cost of the fuel was more than enough to cover twice the amount of the tax paid.
‘IIn the next case, a municipal airport located on property owned by a city in Texas likewise claimed refund of tax paid on motor fuel thereafter sold to various air- craft owners who stored their planes in the airport hang- In this instance the operator of the airport col- XL-S. lected a $Uorage fee from the airplane owners but the fuel sold to such owners was sold at actual cost after deduct- ing the 46 tax. In other words, aviation that cost 18q? per gallon including tax was sold at 146 a gallon (Hypothetical figures) to said aircraft owners and the *2 Hon. Geo. H. Sheppard, page 2 (O-.7341)
municipal alrport claimed the refund instead the actual users” a refund of which is here in *es-
The motor fuel tax 2a, V. A.C.S. which tion, is imposed by Article $065b, Section provides in part as follows:
“There shall be and is hereby levied and imposed (except as hereinafter provided) upon the first sale, distribution, or .ISF: of motor in this State an occupation or excise tax c,: Four (4) cents per gallon or fractional part thereof so sold, distributed, or in this State, * * * I1 * * * In each subsequent sale or distribution of motor fuel upon which the tax of r’o~r (4) cents per gallon has been collected, the said tax shall be added to the selling price I so tha.t such tax is ul- timately paid by the person using or consuming said motor the purpose of generating power for the propulsion of any motor vehicle upon the public highways of this State,”
Clearly, under the term of this statute, the tax imposed is to be passed on to subsequent and is to be thereby paid ultimately by the user or consumer. It follows emption from the tax should inure to the benefit of the user or consumer and that any refund thereof must relate directly to the of the motor fuel on which the tax has been use or consumption is recognized in the provisions for a refund of this paid. 13 of this tax following in Section same kticle 7065b. It is not deemed necessary to quote at length from, nor analyze in de- tail, all of the provisions section. Suffice it to say that the intendment of the entire section and of each of its sub- sections is that the claim for a refund of motor taxes shall be made only by the user or consumers and that no refund shall be from a made unless such user or consumer purchased the motor fuel “refund dealer” as provided0 13 providing
This section for refunds operates as an ex- emption to motor taxes generally imposed. As such it should be strictly construed and the burden is on the one claiming an exemption from taxes to bring himself clearly within the statute. (See Methodist Church v. City of San Antonio, 201 S.W. 669). Ex- emption from taxation is never favored and in construing laws exempting any citizen or class of property, all doubts are resolved against the exemption. (See Santa Rosa Infirmary v. City of San Antonio, 259 S.W. 926) o
Hon. Gee. H. Sheppard, page 3 (O-7341)
The section is an integrated statute devoted mostly to procedures for obtaining refunds of the kind here in question. By its terms (see subsection a) the refunds authorized are to be made “in the manner and subject to the limitations described here- in.” The procedures prescribed are of the essense of the statute and a compliance therewith is a condition precedent to the right to the refunds that it authorizes. d “refund dealer” is defined and (in subsection b) the sale of motor fuel on which a refund of the tax may be authorized by anyone without a refund dealer’s license is prohibited and made a misdemeanor. Throughout the statute it is manifest that a claim for a refund is to be made by, and any refund paid thereon is to be paid to, the actual u.ser or consumer.
There is no standard provided nor any reason found for permitting any exception to the above requirements. is sup- ported by several considerations. First, the applicable rules of construction above mentioned require a strict compliance with the procedures prescribed in the statute. Second, under the princi- ple of departmental construction, the long continued policy the Comptroller’s Department in requiring airports and boatdocks desiring to sell motor fuel to private owners, to secure a refund dealer’s license would resolve any possible doubt as to the in- stant cases. knd third, there is the cogent reason ception could be extended to other sellers in the course of dis- tribution or enlarged upon through the sale of increased quanti- ties until the very purpose of the statute would be defeated.
The foregoing considered, it is the opinion office that the Comptroller may not le ally approve a claim a refund of motor fuel taxes Iunless (1 ‘i the claimant was the ac- tual user or consumer of the motor fuel and (2) the claimant purchased such motor fuel directly refund dealer. This negative answer to your first question makes an answer to the second unnecessary. It may be noted that the price at which the fuel is sold does not affect the procedure for claiming a re- fund.
kccordingly, you are advised that in the cases presented the claims filed by persons other than the user or consumer may not be approved.
APPROVED SEP 11, 1946 Yours very truly /s/ Grover Sellers ATTORNEY GENERAL OF TEXAS ATTORNEY GENERAL OF /s/ Jackson Littleton BY TEXAS Jackson Littleton, Assistant APPROVED: OPINION COMMITTEE
BY: BWB, CHAIRMAN
JL: JMc:wb