Case Information
*1 May 19, 1948 . Sheppard Hon. George H. Comptroller Public Accounts
Austin, Texas
Opinion No. v-583
. Re: The applicability of the Texas motor fuel tax to motor fuel purchased by the U. 9. Government and ultimately used by the Dear Sir: Texas National Guard.
Your request for an opinion on the above reads in part: “We have requests from Texas motor fuel distributors for approval by this de- partment of tax exempt sales of motor
to the United States Government for use ul- timatelg by the Texas National Guard,
“An inqulrg addressed to Lieutenant Colonel Burton E, Miles of the Texas Na- .’ tional Guard who is also serving in the
capacity of acting United States Property- Disbursing Officer, reflects that the Fed- eral Government has In fact been purchasing the motor fuel used by the Texas National Guard under Supply Contracts of the Pro- curement Division, United States Treasury Department, which contracts provide for ,,.exclusion of State taxes, but include Fed-
eral taxes 0 The motor is paid for ,with U, S, Treasury checks or vouchers pro-
cessed by the Fort Worth Finance Office, United States Army, Fort Worth, Texas.
Lieutenant Colonel Miles stated that all of the Motor fuel purchased with Federal funds used in Federal vehicles owned by the Federal Government and bearing War De- It appears, partment Registration numbers.
however, that these vehicles are assigned to and used by the Tex8s National Guard.
Han, George Ii, Sheppard, Page 2, (V-583)
“We are enclosing the letter Lieutenant Colonel Miles explaining
transactions O a j
“We shall appreciate your advice as to whether or not the motor fuel used by the Texas National Guard is subject to the Texas tax. ”
Lieutenant Colonel Miles0 letter discloses: 1 All units of the Texas Natfon- al Guard are Federally In the Ba- tlonal Guard of the UnItei States before any purchases are made a m c
Article 7065b - 2 provides in partz “(a) There shall be and hereby le- vied and imposed (except as hereinafter
provided) upon the first sale, dlstrlbu- tlon, or use of motor la this State an occupational or excise tax of Four (4) cents per gallon or fractional part there- of so sold, distributed, or used in this State. Rvery distributor who makes a
first sale or distribution
in this State for any purpose whatsoever shall, at the time of such sale or dlstri- collect the said tax from the pur- chaser or recipient fuel, In addition to his selling price, and shall report aud pay to the State of Texas the tax so collected at the time and in the manner as hereinafter provided a O O
“(d) No tax shall be imposed upon the sale, use, or distribution of any mo- tor fuel, imposing of which would con- stitute an unlawful burden on interstate commerce and which is not subject to be taxed under the Constitution of the State of Texas and the United States, In the event Is in conflict with the Constitution or any law of the United States with respect to the tax levied up- on the first sale, distribution, use *3 Hon. George H, Sheppard, Page 3, [V-583)
of motor in this State, then it Is hereby declared to be the Intention of to impose the tax levied here-
in upon the first subsequent sale, distrl- fuse1 which may be subject to being taxed.
It is noted that purchases are made for only those units of the Texas National Guard that are federally recognized, Such units are a part of the National Guard of the United States (32 in turn Is a part of U. Se C. A. Sec. 4a) which Army of the United States (10 U, 3, C, A. Sec. 2)* The United States is empowered by its Constitution to maintain and operate its armed forces (Art, l,Sec, 8) of which the federally of, the Texas units Rational Guard are a part o
Since the early case of 1 nd 4 Wheat” 316, it h&s been t
+ s *tes cannot exercise the right of taxation in res- pect to any of the instrumentalities which the govern- ment may create for the performance its constitu- It Is true that the trend of our tional functions.
decisions is not to extend governmental immunity state taxation and regulation beyond the national gov- ernment itself and governmental functions performed b Its officers, Penn. Dairies v, Milk Control Comm, 31 s U, so 261s However, It Is still law that any law- ful function of the federal government Fn the perform- ance of which the United States acts direct1 is con- 3tltutionally immune from State taxation, un ess Coa-
ress consents, U. So v. State of New Ysrk, 140 F (2) 808, pff;lrmed 326 N, So 572,
Congress has not given consent to the scv- era1 states to exact a tax oa motor fuel purchased by the United States ultlma%e we by units @f the Army of the United States, nor l&as it give5 it8 con- sent for the states to place the tu upe~ the use l f such fuel by said units, We must, therefare, answer your in the negative,
”
Hon. George H, Sheppard, Page 4, (V-583)
The Texas Motor Fuel Tax (Art. 7065b, V. C. 3,) is not applicable to motor fuel purchased by the United States 5overnmeat by the Federally Texas National Quard.
Your3 very truly, ATTORNHY GENERALOF TEXAS DMG:sh:mrj
ATTOREJXY GERRRAL