Case Information

*1 f?RICE DASIEL .\,mtSEY GESERAL April 28, 1947

Hon. George H. Sheppard opinion No. v-170

Comptroller of Public.Acccunts Austin, Texas BE: The refund of

motor fu8l tax to one converting naphtha to light-. er fluid for mark- ., eting in small .contaQers.

Dear Mr. Sheppard:

In your letter of April 9, 1947,.gcu re- quest the opinion of this department upon the appli- cation of the Gibson Products Company, Seagoville, Texas, for refund .of motor fuel taxes paid by- said concern upon naptha (ooming olearlp within the d&i.- nition of motor fuel) which it purchased and put up in ssall containers for sala as cigarette and c,igar~.

lighter fluid.

seot:od~ Artiole 7065b, provides as ... "Any person who puro,hases motor fuel in the State of Texas, and any distributor who appropriate8 motor fuel for use when such motor fuel pur- chased bg such person or used by such distributor ior operating or propel- .~. lingany stationary gas engine or trac- tor used ior .agricultT+ral purposes, motor boats, airoraft, or for any pur- pose other than use in a motor vehicle . operated or intended to be operated in whole or-in part upon any of the public highways, roads, or streets-of the State of Texas, on which motor fuel tax has been paid, either directly or indi- rectly, shall be refunded the amount.of such taxes so paid, b' the distribqtor, exclusive of the one 9 1) per cent de- duction allowed distributors upon the first sale, distribution or use of said *2 . Hon. George H. Sheppard - Page 2 (V-170)

motor fuel, for Collecting and remit- ;!. ting the tax and for evaporation and :., other losses in the manner and subject ~; to the limitations and conditions de- scribed herein. Provided, however, ,i.:,:, that no greater emount shall be refund- 'yj ed than has been paid'into.the Treasury on any motor fuel. The tax actually $$ paid by any distributor or person shall be refunded-'as:pxovided herein ~01% fac- : tor fuel not subject to the tax.* kletily before the Gibson Products Company 'is entitled t0.a refund, it must establish its right th8r8tOYund8r the terms of said statute. The only ba- sis.upon~which the~'Gibson Products Company can qualify for a refund.ie that portion of the statute reading a6 ." .,

n :. or for any purpos8 oth8r than us: in a motor vehicle Op8Tat8d'or int8eded to b8 Op8I&t8d in whole. or in '._' '. paasupoe any of the public highways, . Ed or streets of the Stat8 Of.Texas, % on which motor rue1 tax'haa been paid, either directly or 'indireotly. .:., ." : ' '.

Concededly, the us8 to which this concern' ,!. appropriates the naphtha, namely,, conv8rting it into i cigarette and cigak lighter fluid sold'in small quan- titi8S iS a use for SOm8 other pUFpOS8 other th8n us8 :' in a motor vehicle operated or intended to be operated" inwhole or in part on any of-the public highways, &a., Of the State.

We are of the opiqion that the Gibson Prod-

ucts Company is in truth the consumer aS COnt8mpk&8d, under the statute rather than the purchaser of the mll quantities of cigarette and cigar lighter fluid oon- verted by the oonsum8r into these.small quantiti8S and sold promiscudusly to the ultimate users of this fluid.

It follows that the Gibson ProduotS Company 18 entitled t0 a refund as a qualified COnSUU8r'fOr a.purpose other than use in a motor vehicle operated or intended to b8 operated in whole or in part upon any of the'pubdio high- ways, roads, eto.j'of this State.'. We assume, of course, that it has met the.'other prov%sions of'the statute in regard to timely filing application for refund and has made use of the naptha,'a motor fuel; within the..time prescribed by other provisions of the Statute. I *3 l Hon. George H. Sheppard - Rage 3 (V-170)

If naphtha, a motor fuel, is con- verted into cigarette and cigar lighter

fIuid and sold as the latter product, on8

who converts such motor iU81 into such

US8 is under the terms of Article 7065b a

contnmef and entitled~ to a reiuad as a

consumer for us8 other than in a motor

vehicle Operated or intended to be oper-

ated in who18 or in part upon any Of th8

publio highwaya, roads or streets of the

State of Texas; provided, such con&uaer

08I1 qualify under the other provisions of

the act in timely Presentin&? a claim for'

r8tUd and in the tiUl81y use of the motor

fuel thus converted.

Yours very truly ATTORNEYWiNERAL OFTRXAS LFL/lh/wb ' li

APPRUVED APRIL 28, 1947 2.L a!iiiLd ATTORNEY GRRERAL OF TBx4s