Honorable Robert S. Calvert Opinion No. WW-1020
Comptroller of Public Accounts
Capitol Station Re: Whether the Comptroller
Austin, Texas of,Public Accounts has the
c authority to promulgate a
certain rule and regulation
to be used In ascertaining
the taxable gallons of Special
Fuels used for lncldental
i Dear Mr. Calvert: highway travel.
You-have asked this Department for an opinion as L? whether
a proposed rule and regulation, a copy of which Is hereto attached,
can be legally promulgated by the Comptroller under authority vested
in him by Artlcle,10.21,Ch. 10, Title 122A, Vernon's Civil Statutes
This proposed rule or regulation provides for computing the
amount of special fuels used on the highway and off of the.highway
in the same manner as is provided for motor fuels (gasoline)In
Chapter 9, Title.l22A, Article 9.13, V.C.S.
Article 10.08, V.C.S., provides a method for accounting
for the tax on a mileage basis and reads as follows:
"In the event the tax herein imposed
on special fuels Imported Into this State
In the fuel supply tanks of motor vehicles
and the tax on special fuels used In motor
vehicles owned or operated by llcensed
suppliers or other persons acting as users
can be more accurately determined on~a
mileage basis (that is by determining and
using the total number of miles traveled
and the total gallons of fuel consumed),
or In caue It IS more practicable to so
determine the tax, the Comptroller Iti
hereby authorized to approve and adopt
such basis."
Article 10.14, V.C.S., Section 1, reads, In part, as
follows:
"(1) Except as otherwise provided by
Article 10.15 of this Chapter, any licensed
dealer who shall have patithe tax Imposed
.
Honorable Robert S. Calvert, Page 2 Opinion No. WW-1020
by this Chapter upon.any liquefied
gas or distillate fuel which has been
used or sold for use by such 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 Government for the exclusive
use of said government,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 propelling a motor v&lcle upon
said public highways, may file claim for
a rerun: of the tax or taxes so paid,
. . . .
Section 1 of Article 10.14, V.C.S., further &=ovldes that
claims for refund shall be filed with the Comptroll-...
on forms
prescribed by the Comptrollerand reads, In part, as follows:
and shall show such other facts
and'l&&mation as the Comptrollermay
by rule and regulation require. . . . '
Article 10.21, Ch. 10, Title 122A, V.C.S., provides, In
part, as follows:
"It Is hereby made the duty of the
Comptroller to collect,-supervise, and
enforce the collectionof all taxes,
penal'les, Interest and costs, due or
that d[
ay become due under the provisions
of this Chapter, and to that end the
Comptroller Is hereby vested with all
of the power and authority conferred by
this Chapter. The Comptrollershall
also have the power and authority to
promulgate rules and regulations,not
Inconsistentwith this law or the Constl-
tutlons of this State or the United States,
for the enforcement of the provisions of
this Chapter and the collection of all
taxes, penalties, Interest and costs pro-
vided In this Chapter."
Chapter 9 of Title 122A, V.C.S., provides for taxes on
motor fuels or gasoline as defined therein and Chapter 10 of
Title 122A, V.C.S., provides for tax on special fuels, such
as L.P. gas and diesel fuels which are defined In Chapter
10. Your request Is as to whether or not you are authorized
to promulgate a rule or regulation allowing the same method
of computing ,thetaxes due on spedal fuels as defined In
<. .
Honorable Robert S. Calvert, Page 3 Opinion No. WW-1020
Chapter 10, as Is authorized In the computing of taxes on
gasoline as provided In Chapter 9 of Title 122A, V.C.S.
Chapter 10 does not provide any method making It mandatory
to compute the tax In any particular manner but provides a
method that may be used. Article 10.21, V.C.S., authorizes
the Comptroller to make rules and regulations for the enforcement
of the provisions of this Chapter and the collection of all taxes,
'penalties, Interest and costs provided In this Chapter. Article
I 10.14, above set forth, also provides for the Comptrollermaking
rules and regulations In connection with the computing of the
taxes and refunds of special fuels.
It Is the opinion of this Department that the Comptroller of
Public Accounts has authority under Articles 10.14 and 10.21
of Chapter 10, Title 122A, V.C.S., to promulgate the -ule and
regulation, a copy of which Is attached, for the compv.~ng of
taxes levied by Chapter 10.
SUMMARY
The Comptrollerof Public Accounts
Is authorized by Chapter 10, Title 122A,
V.C.S, to promulgate a certain rule and
regulation (copy attached) to be used
In ascertaining the taxable gallons of
spe'clalfuels used for Incidental highway
travel.
Yours very truly,
WILL WILSON
Attorney General of Texas
JHB:cm
: APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
W. Ray Scruggs
Grundy Williams
Joe Osborn
Lawrence Hargrove
REVIEWED FOR THE ATTORNEY GENERAL
By: Morgan Nesbltt