Honorable Robert S. Calvert Opinion No. WW-1462
Comptroller of Public Accounts
Austin, Texas Re: Whether Article 9.13
(7) V.C.S. will permit
the refund of tax paid
on motor fuel used from
a separate fuel tank in
a power pumping unit
operated by the motor
of a motor vehicle which
travels predominantly on
the highway and not over
prescribed courses between
Dear Sir: fixed terminals.
You have requested our opinion on the following quea-
tion:
"The Comptroller, 'requestsyour opinion as
to whether the Permian Corporation is entitled
to recover a tax refund in view of Article 9.13
(7) - Chapter 9, Title 122A, Taxation-General,
Revised Civil Statutes - of the Motor Fuel Tax
Law, which reads in the applicable parts as
follows:
“‘(7) No tax refund shall be paid
on motor fuel used in automobiles, trucks,
pickups, jeeps, station wagons, buses, or
similar motor vehicles designed primarily
for highway travel, which travel both on
and off the highway except as hereinafter
provided. (a) If any such motor vehicles
are used entirely for non-highway pur-
poses except when propelled over the
public highway to obtain repairs, oil
changes, or similar mechanical or main-
tenance services, or when propelled
over the public highway for other lncl-
dental purposes, or (b) If any such
motor vehicles are operated exclusively
during the period covered in any refund
claim over prescribed courses lying
Honorable Robert S. Calvert, Page 2 (Opinion No. W’W-1462)
between fixed terminals or bases, in
which such vehicles travel the same
mileage on the highway on each trip,
and the same mileage off the highway
on each such trip, then in such cases
a tax refund claim may be approved for
the motor fuel used off the public
highway in such vehicles, only when
the claimant has kept a complete
record of each trip traveled over
any part of the public highway
showing the date, the highway
mileage traveled and the quantity
of motor fuel used in each of said
vehicles during the period of such
travel.'",
and inconnection therewfth you have submitted these facts:
"The Permian Corporation, a private carrier,
operates some 58 trucks with cargo tanks In
which It transports petrole,&nliqufds over
the highways of Texas. Each truck is equipped
with a power-pumping unit operated by the same
motor which propels the truck over the high-
ways and which is used to pump the petroleum
products in loading and unloading the cargo
tank.
"The Permian Corporatfon proposes to
install a separate fuel tank on each truck
with a connection to the carburetor feeding
the motor but with a switch valve which will
enable the driver to use fuel from the extra
tank while the truck is stationery for
pumping the liquid load on and off the
cargo tank. When the loadfng operatfons
are completed, the driver Is instructed to
switch the valve to the regular fuel tank
from which motor fuel will be used In pro-
pelling the trucks over the roads and hlgh-
ways. Permian has requested authority to
claim tax refund on the motor fuel deter-
mined in this manner to have been used
while the motor vehicle is stationery and
not moving over the highway."
Section 2 of Article 9.13, Title 122A, TaxationGeneral,
V.C.S., the statute authorizing the refund of motor fuel taxes,
reads as follows:
. .
Honorable Robert S. Calvert, Page 3 (Opinion No. ~-1462)
"(2) Any person (except as herein-
after provided), who shall use motor
fuel for the purpose of operating or
propelling any stationary gasoline
engine, motorboat, aircraft, or tractor
used for agricultural purposes, or for
any other purpose except in a motor
vehicle operated or intended to be
operated upon the public highways of
this State, and who shall have paid
the tax imposed upon said motor fuel
by this Chapter, either directly or
Indirectly, shall, when such person
has fully complied with all provisions
of this Article and the rules and
regulations promulgated by the Comp-
troller, be entitled to reimbursement
of the tax paid by him less one and
one half per cent (14%) allowed dis-
tributors, wholesalers and jobbers,
and retailers under the provisions
of this Chapter. Provided, however,
no tax refund shall be paid to any
person on motor fuel used In any con-
struction or maintenance work which
Is paid for from any State funds to
which motor fuel tax collections are
allocated or which Is paid jointly
from any such State funds and Federal
funds, except that when such fuel is
used in maintenance of way machines,
or other equipment of a railroad,
operated upon stationary rails or
tracks, then such railroad shall be
entitled to a tax refund on such
fuel."
Attorney General's Opinion No. WW-1019 dated March 16,
1961, quoted from Attorney General's Opinion No. o-2381 under
date of July 25, 1940, and we believe these same quotations,
which are copied hereafter, are pertinent to this opinion:
$1'1. Oil field equipment is used
which is a licensed or registered motor
vehicle (truck). On this truck is
mounted a drilling rig. The truck
motor is used for two purposes: (a)
propelling the vehicle from place to
place, which may be on public roads
or highways, private property, such
as leases, or both; (b) operating the
Honorable Robert S. Calvert, Page 4~ (Opinion No. W-1462)
equipment mounted on the truck strictly
as a stationary engine,. This is accom-
plished through a power take-off which
separates the motor from the truck
while so used.
If
‘2 . This same procedure is used In
connection with the following classes
of work; namely, post-hole drilling for
power lines, pumping oil into tank built
on the same truck, feed-grinding mills,
oil well cementing, 011 well treating,
fire engines for pumping water on fire
after arrival.'
"'The following situation has never
arisen; however, the facts are true, and
as such mustybe given consideration. A
farmer or rancher uses a registered truck;
thereon he would have two fuel tanks and
keep the fuel used for traveling on the
roads or highways separate from that used
while driving the same truck on his pri-
vate property. This would require a
switch from one fuel tank to the other
at the proper time; and, furthermore,
such trucks would not have a power
take-off arrangement.'
"Opinion No. o-2381 held that in these situa-
tions the refund should be allowed if the fuel
was shown to have been used for operating and
propelling the registered truck in question
upon private property and not upon and along
highways of this State. As indicated in the
above opinion and the courts generally, where
there is an ambiguity the question should be
decided In favor of the taxpayer."
The law in effect at the time of Opinion No. 0-2381
in 1940 has not been materially than ed since that time. A
pertinent part of Art. 7065b - 13 (by V.C.S. which was in
effect in 1940, reads as follows:
"No refund of the tax shall be allowed
on motor fuel used in any registered or
licensed motor vehicle or in any motor
vehicle operated or intended to be operated
In whole or in part upon any of the high-
ways, roads, and streets of this State."
Honorable Robert S. Calvert, Page 5 (Opinion No. w-1462)
This prohibition against allowing refunds is in effect
almost identical with the prohibition of today as set forth
above in Section (7) of Article 9.13, Title 122A, V.C.S.
In answer to this prohibition copied above from the
1940 statute, the writer of Opinion No. o-2381 had the fol-
lowing to say:
"At first blush, and considering the fore-
going prohibition without reference to the
other provisions of the Motor Fuel Tax Law
pertinent to this issue, It would appear
that the Legislature has foreclosed the
question by disallowing a refund of the
tax on motor fuel used in 'any registered
or licensed motor vehicle', regardless of
the nature, location, purposes or conditions
of such use. In other words, a strict and
literal Interpretation of this provision
would require the disallowance by you of
all filed refund claims for motor fuel
taxes on motor fuel used in, about or In
connection with such vehicle, whether on
or off the highway, and whether used for
the propulsion of such vehicle or for the
stationery power purposes indicated in
your first situation. Under this view,
no inquiry into the facts and nature of
the use to which such vehicle was put
would be required. The sole statutory
test for the allowance or disallowance
of a refund claim would be whether or
not the vehicle in question was registered
or licensed under the Registration laws of
the State of Texas. This has heretofore
been your administrative interpretation
of this prohibition and the opinion of
this Department, under prior adminlstra-
tions; but due to the increasing use of
motor vehicles, registered and licensed,
for such non-highway purposes as would
give right to a refund of the tax on
motor fuel if used in engines and power
plants admittedly within the refund pro-
visions, It is not amiss that this holding
should be carefully reviewed at this time.
"It Is elementary that statutes, or parts
of statutes, pari materla, should all be con-
sidered together, if harmonious and uncon-
fllcting, in order to arrive at the true
. .
Honorable Robert S. Calvert, Page 6 (Opinion No. ~~-1462)
legislative intent, which is the paramount
consideration in the interpretation of
statutes. We shall therefore consider
and interpret the provision that 'no refund
of the tax shall be allowed on motor fuel
used in any registered or licensed motor
vehicle' with the other provisions of the
refund section, particularly, and of the
Motor Fuel Tax Law, generally, bearing upon
the nature of the refund and the conditions
under which the motor fuel must be used to
be refundable, in order to determine the
exact limitations which the legislature
intended to Impose upon the refund prlvi-
lege."
It is necessary in all Instances of statutory con-
struction to attempt to follow the intent of the Legislature
in the overall act.
The various acts and amendments by the Legislature
from the earliest motor fuel tax to date have shown a con-
sistent intent on the part of the Legislature to levy a tax
on motor fuel used to propel vehicles upon the public high-
ways of the state and to exempt from the tax motor fuel used
for purposes other than for propelling vehicles upon the high-
ways.
When we look at the overall picture, it appears that
part of Section 7 of Article 9.13 which reads,
"No tax refund shall be paid on motor
fuel used In automobiles, trucks, pick-
ups, jeeps, station wagons, buses, or
similar motor vehicles designed primarily
for highway travel, which travel both on
and off the highway except as hereinafter
provided. . . .",
has reference to vehicles traveling on and off the highway,
with no record kept of distance on and distance off the high-
way. The fuel in this case is used to propel the vehicle
both on and off the highway from the same tank, and there is
no way of knowlng how much fuel is used in either instance.
The motor vehicle being used as a stationary motor
with fuel being supplied from a special tank, different from
the tank used when traveling on the highway, Is not such a
motor vehicle as "Is operated or intended to be operated
upon the public hi hways of this state", as mentioned in
Art. 9.13, Sec. (27.
Honorable Robert S. Cslvert, Page 7 (opinion IJo;~~-1462)
According to the facts given, the motor which is
at all times '(while using fuel from the special tank) being
operated in a stationary position off the highway may be
said to be used entirely for non-highway purposes, as is pro-
;I?; in example (a) of Sec. (7) of Art. 9.13, Title 122A,
. . .
We are aware of the fact that this interpretation of
the act makes It more,.difflcultto administer and may open the
door to fraud and mistakes as pointed out in your request.
However, it is not for us'to decide whether or not this law
is practical. That was within the province of the Legisla-
ture in passing the law. We must assume the facts are as
set forth in the request and that they will be carried out
as stated.
At the very beginning of Art. 9.13, Sec. (1) reads
as follows:
'I'.
c ', ,'
"(1) In all refund claims filed under
this Article, the burden shall be,on the
claimant to furnish sufficient and satls-
factory proof to the Comptroller of the
claimant's compliance with all provisions
of this Article; otherwise, the refund
claim shall be'denied."
This gives the Comptroller authority to deny the claim for
refund unless the claimant furnishes sufficient and satls-
factory proof of compliance with the act.
You are therefore advised that under the facts given
the tax paid on motor fuel used from a separate tank which Is
used only when the vehicle Is in a stationary position, being
used to pump the petroleum products in loading and unloading
the cargo tank, is subject to a claim for refund under pro-
visions 9.13, Title 122A, V.C.S.
SUMMARY
Under the facts submitted, the tax paid
on motor fuel used in truck motor to operate
power take-off for loading and unloading
truck cargo, which fuel is furnished from
separate tank from the tank used to supply
Honorable Robert S. Calvert, Page 8 (Opinion No. ~~-1462)
fuel for propelling truck over the highway,
is subject to motor fuel tax refund.
Very truly yours,
WILL WILSON
Attorney General of Texas
J. H. Broadhurst
Assistant Attorney Ceneral
JHB:pw
APPROVED:
OPINION COMMITTEE
W. V. Ceppert, Chairman
Bill Allen
Iola Wilcox
L. P. Lollar
Paul Phy
REVIEWED FOR THE ATTORNEY CENERAL:
By: Leonard Passmore