Untitled Texas Attorney General Opinion

- . 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, -224C 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 -2241- . . 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. -2242- 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 -2243-