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THEA~TORNEY GENERAL
OFTEXAS
AUSTLW +I. T-EP&%S
September 14, 1959
Honorable Robert S. Calve& Opinion No. WW-701
Comptroller of Public Accounts
Capitol Station Rc: N&&her the Comptroller
Austin, Texas of Public Accounts can
approve and pay a claim
for tax refund filed by
the Bayshore Rod, Reel
and Gun Club on motor
fiel purchased in the
,name of the club and
Dear Mr..Calvert: billed'to the club.
Your request for an opinion on the above referenced
subject reads in part as follows:
"The Bayshore Rod, Reel and Gun Club, a
corporation whose membership lr made up OS sev-
eral thousand sportsmen and flrh and game con-
servationists, has urged that this office secure
an optnion from the Attorney Ocneral as to
whether the club can made valid claim for and be
paid tax refunds on motor fuel purchased and
used by its,individual membera in their private
boats if the motor fuel is purchased in the name
of and billed to the club.
"The Club proposes to proceed as follows in
filing the tax refund claims:
"The Club would request of its members that
when any such member buys motor fuel for use in
his boat that he ask the refund dealer to issue
the invoice and invoice of exemption to and in‘:
the name of the Bayshore Rod, Reel and Gun Club.
The invoice of exemption received with the pur-
chase of the fuel would then be mailed to the
Club by the members where the Club would accu-
mulate the exemptions from all of such members
and would file one refund Claim for all of the
motor fuel so purchased and invoiced in the name
of the Club.
I,. . .
Honorable Robert S. Calvert, Page 2 (Opinion No. WW-701)
"Will you please advise this office whether
it can approve and pay a claim for tax refund
filed by the Bayshore Rod, Reel and Gun Club on
motor fuel purchased and paid for by its members
and invoiced in the name of the Club as set out
above?"
The Act known as the Motor Fuel Tax Law has been
codified as Article 7065b of Vernon's Civil Statutes, as
last amended in 1957. Provisians concerning refunds of
the tax levied are set out in Section 13, subsection (b)
of which provides as follows:
"(b) Any person (except as hereinafter
provided), who shall use motor fuel for the
purpose of operating orpropelling any sta-
tionary 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-iii&orfuel
mhisAr???le,either directly or indirectly,
shall, when such person has fuliy complied with
all provisions of this Article and the rules
and regulations promulgated by the Comptroller,
be entitled to reimbursement of the tax paid bye
him less one and one-half per cent (l$$) allowed
ztributors, wholesalers and jobbers, and re-
tailers under the,provisions of Section 2 (b) of
this Article. , . .'
Section 13 (f) provides that:
I,. . . The refund claim, with all duplicate
invoices of exemption required by law to be
issued with the sale of refund motor fuel inclu-
ded as a part of said claim, shall be verified
by affidavit of the claimant, or a duly author-
ized agent of the claimant, and shall show the
quantity of refund'motor fuel acquired and on
hand at the beginning and closing dates of the
period covered in the refund claim filed.
If upon examination, .the Comptroller
finds'that the claim filed for'tax refund is
just, and that the taxes claimed have actual1
been pm by.thelainant,
-- then haa d
-an-due -- the claimant. . . .
.
Honorable Robert S. Calvert, Page 3 (Opinion No. WW-701)
11
. . .
"If the refund motor fuel was used in aircraft
or motor boats, the claim shall show the make
and description of such aircraft or motor boat
and the quantities of motor fuel used during
the period of the refund claim." (Emphasis
supplied throughout.)
The above provisions clearly contemplate that the
refund shall be paid to the person who uses the motor fuel,
after detecnining that "the taxes claimnave actually
been paid by the claimant." Under the fact situation sub-
mitted, the individual members of the club, not the club
itself, would necessarily be the claimants, as they would
have actually paid the tax and used the fuel. Moreover, it
would be impossible for an officer of the club to make the
affidavits required by the section.
The Club proposes to have its members, when buying
motor fuel for use in their boats, request the refund dealer
to issue the invoice and invoice of exemption in the club's
name. This would constitute, in effect, an attempted
assignment of the right to refund. However, Section 13 (i)
specifically provides that:'
"(i) The right to receive a tax refund
under the provisions of this section shall not
be assignable except as hereinafter provided.
Any person residing or maintaining a place of
business outside of the State of Texas who
shall purchase motor fuel in any quantity of
not less than one hundred (100) gallons and
shall export the entire quantity so purchased
out of Texas forthwith, nay assign his right
to claim tax refund to the licensed distributor
from whom such motor fuel was purchased, or to
any licensed distributor who has paid the tax
on such motor fuel either directly or through
another licensed and bonded distributor in
Texas. . . ."
Attorney'General's Opinion No. o-7341, written in
1946, a copy of which is herewith enclosed, held that the
Comptroller may not le ally approve a claim forrefund of
motor fuel tax unless 7 1) the claimant was the actual 'user
or consumer of the motor fuel and (2) the claimant pur-
chased such motor fuel directly from a licensed refund
dealer. It is interesting to note that, at the time this
Honorable Robert S. Calvert, Page 4 (Opinion No. WW-701)
opinion was written, Section 13 of the Act provided that,
"Any person who purchases motor fuel in the State of Texas
. . .' for non-highway use shall be entitled to a refund
of taxes paid thereon. Thereafter, the Section was amended
to read, "Any person. . .who shall use motor fuel. . ."
for non-highway purposes shall be entitled to the refunds.
This seems to indicate an approval by the Legislature of
the holding in Opinion No. o-7431.
It has been suggested byethe Club's attorney that
this situation is identical to that in Attorney General's
Opinion No. WW-172, which held that the Civil Air Patrol
could apply for and receive'refunds of motor fuel taxes
paid by its members on fuel used in their airplanes. If
the situations are identical, then of course the same
result should here be reached. However, a study of Opinion
No. WW-172 discloses certain important fact differences, as
follows:
1. The C.A.P., though a volunteer organization,
is chartered by Congress and made an auxiliary of the
United States Air Force. The Bayshore Rod, Reel and Gun
Club is not so chartered. It is, so far as we can deter-
mine, simply a club made up of members sharing common
interests or hobbies, such as fishing, boating, and hunting,
and thus naturally interested in conservation.
2. The C.A.P., pursuant to itspurpose for exist-
ence, aids Civilian Defense, health, and law enforcement
bodies. The Patrol assigns such missions to its members.
(In observation missions aiding the Civilian Defense Ground
Corps, the members are usually reimbursed by the Federal
Government.for expenditures on gasoline and~oil.) Members
are required to log a minimum number of hours air tine per
month to pres'erveflying proficiency. We quote from opin-
ion WW-172 as follows:
'(Tojustify the,refund of all the taxes to
the Patrol, it is necessary to find that the
Patrol is the Durchaser of the gasoline and
therefore entitled to the refund. Texas Com-
pany v. Miller, 165 Fed. 2d 111, cert. den.
?7?nJ.s. em.
"When Civil Air Patrol missions are~~flown,
the gas, of course,'i"sbeing used for Patrol
purposes, and hence, ?it would follow that the-
Patrol is the user and, in effect, the purcha-
'serof the motor fuel consumed. The flier, who
.
Honorable Robert S. Calvert, Page 5 (Opinion.No. WW-701)
purchases gasoline l.nthe name of the Civil
Air - Patrol for Patrol missions I:', accor;d.-
_
ingly, merely tne agent for the Patrol."
In the case under consideration here, so far as we
can determine, the Club does not assign missions or duties
to its members; neither does it require them to spend a
minimum amount of time per month in boating activities.
From the ;above, it is evident that the very nature
and purposes of thentwo groups are so dissimilar as to make
any analogy in this area impossib%&e.
In addition to ,the word~ingof Secti.on13 of the
Act, above discussed, and the reasoning of the earlier
Attorney General's Opinions, we note that the departmental
int~erpretationby your office has in the past limited such
refunds to the actual user of the fuel, who has paid the
tax. For these reasons, yov are here'-yadvised that tax
paid by members of the club under consideration may not be
refunded to the club itself.
SUMMARY
The Comptroller of Public Accounts
cannot approve and pay a tax refund claim
to the Bayshore Rod, Reel and GUI-Club,
where the tax claimed was paid by members
of the Club on motor fuel used by them
for a non-taxable purpose.
Very truly yours,
WILL WILSON
JRI:bct Attorney General
APPROVED:
OPINION COMMI'TTEE:
Geo. P. Blackburn, Chairman
B. Ii.Timmins, Jr.
Wm. R1 Hemphill
Wallace Finfrock
Riley Eugene Fletcher
Jay D. Howell
James H. Rogers
REVIEWED FOR TRE ATTORNEY GENERAL
By! W. V. Geppert
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