- .
A IRNEX- GENERAL
XAS
August 21, 1969
Honorable Robert S. Calvert Opinion No, M-451
Comptrollerof Public Accounts
Capitol Building Re : Whether a declaration by
Austin, Texas 78711 purchaser, under penalties
of perjury, that the tax
on all motor fuel which has
been purchased on credit
card and Included in claim,
has been paid, will sup-
port a claim for refund
under Article 9.13(6),
Dear Mr. Calvert: Motor Fuel Tax Law.
You requested an opinion from this office and state the
Pacts as follows:
"Purchasesof motor fuel for use In aircraft
are usually made by credit card, or in many
instances by several credit cards covering
different brands of motor fuel purchased, for
which the refund dealers delivering the fuel
can not Issue receipts for the tax payments.
In the past the claimant has been required to
obtain a receipt from the distributorswho
issued the credit card showing that the tax
has been paid by him on the fuel purchased
which creates a burden upon the claimant to
obtain a receipt, or often several receipts,
to support his claim.
"Article9.13 of Chapter 9, Title 122A,
Taxation-General,Revised Civil Statutes of
Texas, authorized the Comptrollerto pay a
claim for refund of taxes paid on motor fuel
used for non-highwaypurposes when made and
subscribedby the claimant on a form preecribed
by the Comptrollersubject to the (felony)
penalties of Article 1.12 of said Title 122A
for making a false or untrue statement to any
material Pact,
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Hon. Robert S. Calvert, Page 2 (M-451)
"In lieu of requiring a claimant who
purchase8 motor fuel on a credit card to
furnish a receipt of payment from the
distributor to whom he has paid the tax,
the Comptrollerwould like to include in
the claim form prescribed by him a8 part
of the claim filed subject to the penalties
of the said Article 1.12, a declaration
that the tax on all motor fuel included in
the claim which ha8 been pmrchased on a
credit card has been paid to a duly licensed
distributor of motor fuel in Texas, if it
can be legally accomplished.
"Will you please advise me whether such
statement In the claim would serve as
proof that @the taxes claimed have actually
been paid by the claimant' a8 contemplated
by the law?"
The provisions which are applicable to the facts presented
and thus govern are Articles 9.13(l) and g-13(6), Chapter 9,
Title 122A, Taxation-General,Vernon's Civil Statutes, which
provide, In part, as follows:
Article 9.13(l):
"In all refund claims Piled under this
Article, the burden shall be on the
claimant to furnish sufficientand satis-
factory proof to the Comptrollerof the
claimant's compliancewith all provisions
of this Article; Otherwise, the refund
claim shall be denied." (Emphasisadded.)
Article 9.13(6):
” . . . o The claim for tax refund shall in-
clude a statement that the informationshown
In each duplicate invoice of exemption
attached to the tax refund claim is true and
correct, and that deduction8have been made
from the tax refund claim for all motor fuel
u8ed on the public highways of Texas and for
all motor fuel used or otherwise disposed of
In any manner In which a tax refund is not
authorized herein. If upon examination,and
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. .
Hon. Robert S. Calvert, Page 3 (M-451)
8UCh other investigationas may be
deemed neces8ary, the Comptrollerfinds
that the claim filed for tax refund is
]u8t, and that the taxes claimed have
-ten
ac ua
he shall issue warrant due the clalmant
but no greater amount shall be refunded
than has been paid Into the State
'Treasuryon any motor fuel, and no warrant
.t
hall b id b th State Treasurer un-
less
Tess presented
prEs%ed for
:or payment
Eayment within two (2)
years from the close of the fiscal year in
which such warrant
narrant was issued, but claim
for the payment of such warrant may be
presented to the Legislaturefor approprla-
appropria-
tion to be made from which said warrant may
be paid." (Emphasisadded.)
We conclude that the quantum of proof to be required of the
taxpayer claimant for his refund is a matter vested largely
within the discretion of the Comptroller. A declarationfrom the
claimant subje'ctto the penalties that he has paid the taxes in
question to the duly licensed distributoris a fact or clrcum-
stance which would constitute some evidence or proof of such
fact. Standing alone, however, it is not conclusive evidence upon
which the Comptrollermight Issue a warrant to such claimant.
Article 9.13(6) restricts the ComptrollerIn issu%ng warrants for
refunds in no greater amount "than has been paid into the State
" Also, such statute requires a "finding"b the Comptroller
F==f*
rom ev dence as he may deem necessary that the tax tlaim is just
and has actually been paid by the claimant.
Accordingly,It is the opinion of this office that the
Comptroller,In his di8cretiOn,may accept a declarationfrom the
claimant, subject to the penalties of Article 1.12, Taxation-General
that he did in fact pay the tax In question on all motor fuel
which he purchased and included in his claim for refund, as satis-
factory proof that such claimant paid the taxes to the duly licensed
distributor;provided, however, before the Comptrollermay issue
his warrant for the refund, the statute contemplatesthat the
Comptroller In addition find from his examination of his records and
such other Investigationas may be deemed necessary, that the
claimant actually paid the taxes, the refund claim is just, and that
he is not refunding any greater amount than has been paid into the
State Treasury on the motor fuel.
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Hon. Robert S. Calvert, Page 4 (M-451)
SUMMARY
The Comptroller,In his discretion,may accept a
declarationfrom the claimant, subject to the
penalties of Article 1.12, Taxation-General,that
he did in fact pay the tax in question on all
motor fuel which he purchased and included in his
claim fpr refund, as satisfactoryproof that such
claimant paid the taxes to the duly licensed
distributor;provided, however, before the
Comptrollermay issue his warrant for the refund,
the statute contemplatesthat the Comptrollerin
addition find from his examinationof his records
and such other investigationas may be deemed nec-
essary, that the claimant actually paid the taxes,
the refund claim Is just, and that he Is not re-
funding any greater amount than has been paid into
the State Treasury on the motor fuel.
y General of Texas
v
Prepared by Kenneth L. Nordqulst
Assistant Attorney General
APPROVED:
OPINION GCMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Harold Kennedy
James McCoy
Rick Fisher
Houghton Brownlee
W. V. Geppert
Staff Legal Assistant
Hawthorne Phillips
Executive Assistant
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