‘_1 .., ,
I
Txms AmRNEy GENERAL.
OF TEXAS
AULVX-IN 1% T-
WILL WILSON
*Tro- caswuzAx. September 15, 1960
Honorable Robert S. Calvert Opinion No. iWi-952 ,
Comptroller of Public Accounts
Capitol Station Re: Interpretation of Art. 10.15
Austin, Texas H.B. 11, 3rd C.S., 56th Leg.
(Title 122A, Taxatlon-
General) providing excep-
tions to refunds of tax on
bear Mr. Calvert: special fuels.
Your recent letter eubmlts~the following question for
an opinion:
"Do you construe Article lo.15(2)
to mean that the delivery of special fuels
into fuel supply tanks of tractors,~machlnes
and road construction equipment for use .l.n
hauling, moving and spreading dirt; gravel
and other materials, eupplles and products
on and over highway construction.jobs paid
for from State funds to which special fueia
taxes are allocated, will constitute and be
deemed to mean the delivery of special
fuels Into fuel supply tanks of motor
vehicles for texable use when such construction
job sites are not then and have not thereto-
fore been open to.the public for vehicular
travel?"
We answer your question in the negative.
A tax upon special fuels Is provided for by Chapter
10 of H.B. No. 11, 3rd C.S., 56th Leg., (Title 122A, Taxatlon-
General). Certain terms are defined In Art. 10.01, among which
are the following:
”(5) 'Motor vehicle' m+ine any automobile3
truck, plckup,~jeep, station wagon,
bus or slmllar vehicle, propelled by
amotor nor Internal combustion engine
upon the public highways; provided, that
any tractor, combine, or other vehicle
or machine designed primarily for use
off the public highways shall be deemed
to be a motor vehicle when propelled
Honorable Robert S. Calvert, Page 2 Opinion No. WW-932
or serviced with special fuels for
propulsion, upon the public highways.
I,. . . .
"(10) 'Public highway' means and Includes
every way or place of whatever
nature open to the use of the public
as a matter of right for the purpose
of vehicular travel including toll
roads, and notwithstanding that the
same may be temporarily closed for
the purpose of construction, re-
construction, maintenance or repair."
The tax Is levied by Art. 10.03, which reads in part
as follows:
"(5) Every user shall report and pay to
the State the tax, at the rate
imposed, on each gallon of special
fuels delivered by him into the fuel
supply tanks of motor vehicles,
unless said tax has been paid to a
licensed supplier. . . ."
You have informed us that a contractor or user de-
livering special fuels Into the supply tanks of tractors, machines,
and road construction equipment used,ln highway construction jobs,
as in your question, is ordinarily a "Bonded User" permittee
under Art. 10.11 (1) and therefore entitled to purchase such fuel
tax free. No tax liability arises against him until the fuel Is
"delivered by him Into the fuel supply tanks of motor vehicles."
This is to be contrasted with the status of non-bonded users
(Art. 10.11(l), who are required to pay the tax upon acquisition
from suppliers (Art. 10.03(3) ).
Provisions are made in Art. 10.14 for refunds of tax
paid In certain situations. Exceptions to such refunds are made
by Art. 10.15, as follows:
"(1) No tax refunds shall be paid to any
person on special fuels used In any
construction, maintenance or repair
work on or In connection with the
public highways of this State when
and if such work Is paid for from
any State funds to which special
fuels tax collections are allocated
nor Is paid jointly from any such
,*..:. I;
.< ... . . . ,
Honorable Robert S. Calvert, Page:3 Opinion No. W-932
State funds and Federal funds.
"(2) The delivery of special fuels into
the fuel supply tanks of any tractor,
truck tractor, vehicle, or machine
of any kind or description for use
(a) Lenhauling materials, supplies
or products over the public hlgh-
ways to or from, or in connection
with, any highway construction,
maintenance or repair work, or (b)
for use In mowing the right of way
of the public highways, when such work
is paid for from State funds or State
and Federal funds as above provided,
shall constitute and be deemed to
mean the delivery of special fuels
Into the fuel supply tanks of
motor vehicles for taxable use."
In the situation presented by your question, no hlgh-
way exists. There Is no IIwayor place. . .open to the use ~of
the public as a matter of right for the purpose of vehicular
travel. . .' It is not "temporarily closed for the purpose of
construction, reconstruction, maintenance or repair." It has
Y.. never been opened. The machinery and road building equipment you
:descrlbe are not propelled upon the public highways, while on the
job site, and are therefore not "motor vehicles" wlthln the
quoted definition. This being true, delivery of motor fuel In
the supply tanks of these vehicles'would not constitute a taxable
incident under the Act. However, the delivery of special fuels
into fuel supply tanks of these vehicles to propel same on the
highways In going to and from the job site is a taxable incident.
As no tax has been paid by this bonded user, the "excep~tlonsto
tax refunds" provision contained In Art. 10.15 would not affect
him.
SUMMARY
Under Chapter 10, Title 122a, Taxatlon-
General, R.C.S., dellvery~of special fuels
Into fuel supply tanks of equipment used In
Honorable Robert S. Calvert, Page 4 Opinion No. WW-932
highway construction jobs paid for from
State funds to which special fuels taxes
are allocated, when such construction Job
sites are not then and have not theretofore
been open to the public for vehicular travel,
does not constitute delivery of fuel into
the fuel supply tanks of "motor vehicles",
as defined in that chapter, for a taxable
use.
Yours very truly,
WILL WILSON
Attorney General of Texas
Ehr
es R:Irion
JRI:jlp
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Byron Fullerton
Phoclon Park, III
Robert H. Walls
Harris Toler
REVIEWED FORTHE ATTORREYGENERAL
9JT: Leonard Passmore