THE ATTORNEY GENEXZAL
QF'TEXAS
AUSTIN xi. -
March 21, 1963
Honorable Robert S. Calvert Opinion No. C- 42
Comptrollerof Public Accounts
Austin, Texas Re: Whether the failure to
file refund claim wlthln
the time prescribed by
law, Article 10.14,
Chapter 10, Title 122A,
V.C.S., for taxes paid
on special fuels used
off the Texas highways
will preclude credit
beingtakeqfor such
'. tax payments on sub-
sequenttax accruals
Incurred by the user
Dear Sir: and related questions.
You have requested an opinion from this department and
In connectiontherewith have given ua the following facts:
"A Texas motor carrier, llcensed'aaa
user-importerof special fuels, operates
a fleet of trucks In Interstate commerce
on which he pays taxes to the dealer or
seller of the special fuels and there-
after reports and accounts for the taxes
due on the use of special fuels on the
Texas highways on a~mlleage basis, I.e.,
the.averagemlj.estraveled per gallon of
fueJ~consuPied;~'aaprovld$d'.lnArticle
10.08.,ofti& .1aw. . . .
8,
. . .
"This user;importerha8 a credit, over
and above his tax accruals, for several
thousand.gallonsof tax paid.special fuels
used bff the.Texas highways (In other States)
on which he failed to file claim for tax
refund within six (6) months from the date
of such use, and which cannot now be refunded
because ~of the SIX months llmltatlon above
cited.
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Honorable Robert S. Calvert, Page 2 (NON.C-42)
"Our first question Is therefore as
follows:
"When a user falls to exercise his
right to file claim for refund of taxes
paid, over and above his tax accruals,
on special fuels used off the Texas hlgh-
ways within six months from the date of
such use, as prescribed by law, Is such
user precluded by law from taking credit
for such amount on subsequenttax accruals
Incurred after the six months period for
filing the refund claim has expired?
8,
. . .
"If the Comptrollerdetermines to
his a&tlsfactlonthat any user or other
person~has purchased special fuels or
motor fuel on which he Is required &
..~ .:law.to a Efietaxtothe sealer or seller
attE wm- Fhase, and he thereafter
uses so=fThe ax-paid fuel off the
public highways of Texas and falls to
exercise his right to file for tax
.refundwithin the time prescribed bye
law because he did not know of the time
limit In whlch.clalm must be filed, would
such lgnortice of the law or mistaken
'Ideaas to such time limit for filing
refund claim constitute or be deemed to
be an overpayment of taxes through a mls-
take of law or fact as conte lated In
mT:
the above cited Article l.ll?
The question of whether or not a refund may be paid
after the elapse of six months from the time of delivery or
use of motor fuel Is discussed In Opinions Nos. O-6086 and
O-6195 formerly rendered by this department, copies of which
are enclosed herewith.
In Opinion No. o-6086, the claimant purchased 2,000
gallons of gasoline on January 1, 1944, from a regular licensed
dealer and obtained Invoices of exemption at the time of delivery.
Within four months he had used 1,500 gallons of the gasoline for
which he filed claims for and received refund of tax on the 1,500
gallons. On May 1, 1944, when claim was filed for refund of tax
on the 1,500 gallons, It was shown that 500 gallons Included In
the purchase had not been used. The question was as to when
the claim was barred by llmltatlonon the refund of the tax on
the remaining 500 gallons.
-180-
Honorable Robert S. Culvert, Page 3 (No. C-42)
The opinion held as to this question as follows:
"Thereforewe answer to the first
question, since the claimant purchased
the motor fuel from a licensed dealer
and had delivery thereof on January 1,
1944, and since he was not a distributor
appropriatingsuch fuel-r use, he Is
required to use all of such fuel upon
which he req=ts a tax refund and file
his affldavlt and claim therefor prior
to July 1, 1944."
Opinion No. O-6195 holds that claim for refund of
tax on gasoline exported or lost by fire must be made within
six months from the time of delivery of the gasoline.
These two opinions deal with motor fuel.tax under
Chapter 9 of Tltle'122A, Taxation-General,V.C.S., and this
opinion request pertains to special fuels tax as provided for
by Chapter 10 of Title 122A, V.C.S.; however, both chapters
provide that the claim for refund of taxes paid must be made
within six months from time It Is invoiced for sale or use and
for that reason we think these opinions cited are pertinent.
'Section(1) of Article 10.14 of Title 122A, V.C.S.,
readssas~follows:
"(1) Except as otherwise provided by
Article 10.15 of this Chapter, any ,llcensed
dealer who shall have paid the tax imposed
by this Chapter upon any liquefied gas or
distillate fuel which has beenused or sold
for use by suqh dealer for any purpose other
than propelling a motor vehicle upon the
public highways of this State;/or which
has been sold to the United States Govern-
ment for the exclusive use of said govern-
ment, and any licensed user who shall have
paid said tax upon any liquefied gas or
distillate fuel which has been used by
such user for any purpose other than pro-
pelling a motor vehicle upon said public
'highways,may file claim for a refund of
the tax or taxes so paid, less one per
cent (1%) allowed suppliers for the
expense of collecting and reporting
such taxes to this State. Such claims
shall be filed with the Comptroller on
forms prescribed by the Comptrollerand
-181-
Honorable Robert S. Calvert, Page 4 (No. C-42)
shall show the date of filing and the
period covered In the claim, the gallons
of liquefied gas and the gallons of dls-
tlllate fuel sold or used for purposes
subject to tax refund, and shall show
such other facts and Informationas the
Comptrollermay by rule and regulation
require. Rvery such claim shall be sup-
ported by an Invoice or Invoices Issued
by the claimant, 88 hereinafterprovided,
and shall be verified by affidavit of the
claimant and filed In the office of the
Comptrollerwithin six (6) months from
the date the special fuels were Invoiced
.orrequired to be Invoiced for sale or
use, and no claim shall be made by the
claimant or approved by the Comptroller
when the sale of such special fuels or
the appropriationfor use occurs more
than six (6) months prior to the dates .~ ~,:..
the claim-la filed." .
In accordance with these opinions we are now of the
opinion that when the user mentioned In your request falls to
exercise his right to file claim for refund of taxes paid,
withlrisix.monthsfrom the date of such use, then he Is not
entitled to a refund of those taxes; and this being true,~he
Is precluded by law from taking credit for such amount on.
subsequenttax accruals Incurred after the six-monthperiod
for fl&lng the refund claim has expired.
Your next question relates to tax.credltsauthorized
by Article 1.11 of Title 122A which reads In part aspfollows:
"(2) When the Comptrollerdeterminesthat
any person, firm or corporationhas through
mistake of law or fact overpaid the amount
due the State on any tax collected or admlnl-
stered by the Comptroller,the Comptroller
may with the consent of the taxpayer credit
the person, firm or corporationoverpaying
the tax with the amount of such overpayment.
"(e) Credits expire at the end bf five (5)
years from date of Issuance by the Comp-
troller."
This section of the statute provides that when a per-
son, firm or corporation has, through mistake of.law or fact,
overpald the amotintdue the State, then he may be allowed
-182-
Honorable Robert S. C+lvert, Page 5 (No. C-42)..
credit on taxes later becoming due to the State for the
amount whlc.hhe has overpaid on prior tax accruals.
In %he'facts glven.ln your request there has been
no overpayment of taxes. The proper amount of taxes were
paid and the user merely did not comply with the law as
required to get a refund of taxes paid and this did not
amount to an overpayment.
This would not authorize the purchaser to take credit
for the taxes paid which might have been refunded had the pur-
chaser filed his claim In proper time, for taxes accruing on
fuel bought after the six-monthperiod had expired.
There was not an overpayment of taxes as Intended by
Section 2 of Article 1.11 above mentioned but only taxes paid
on fuel purchased; and,when the purchaser failed to file his
claim for refund within the time prescribed by law, then any
claim for those taxes ceased to exist and the taxes accruing
on fuels purchased after the six-month period had explred Is
a separate and distinct transaction and no claim fqr credit
may be allowed on these taxes because of the failure of the
purchaser to file his claim timely In the prior transaction.
SUMMARY
A user of special fuels as defined
In Chapter 10 of Title 122A, Taxation-General,
V.C.S., who falls to file claim for tax refund
within six-monthperiod from date of use Is not
entitled to take credit for such amount on sub-
sequent tax accruals Incurred after the slx-
month period for flllnga refund claim has
expired. The failure of a purchasir of spe-
cial fuels or motor fuel to file a claim for
refund of taxes paid because he did noteknow
of the time limit, Is not a mistake of law
or fact such as to constitute an overpay-
ment of taxes as provided In Article 1.11
of Title 122A, V.C.S.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
-183-
Honorable Robert S. Calvert, Page 6 (No. C-42)
JHR:pw '
Enclosures
APPROVED:
OPINION COMMI'M'RE
W. V. Geppert, Chairman
0. L. Snow
Cecii Rotach
Murray Jordan
,,-Tobert
Lewis
APPR~DK'~TRRATTORNEYfX3NERAL
By:~ Stanton Stone
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