THEATTORNEY GENERAL
OFTEXAS
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WVILL WILSON
AlTORNEYGENERAL July 28, 1958
Hon. Robert S. Calvert Opinion No. WW-479
Comptroller of Public Accounts
Capitol Station Re: Whether Comptroller can ap-
Austin 10, Texas prove motor fuel tax refund
claim form signed in blank
by claimant and later filled
in by notary public with
executed jurat, and whether
notary's act in filling in
the form and executing the
jurat constitutes a felony
within the provisions of
Section 37(m), Article 706513,
V.C.S.
Dear Mr. Calvert:
We quote the following excerpt from your letter request-
ing our opinion on the above captioned matters:
"This department has become concerned with
the practice among certain notaries public of
accepting tax refund claim forms signed in blank
by the claimant and then filling in the informa-
tion on the form and the notary's jurat after the
claimant has gone. One notary public contends
that he obtains from the claimant an oral state-
ment or a written memorandum, aa to all material
information to be inscribed in the claim, which
information he (the notary) thereafter fills in
on a claim form which has been signed in blank,
executes his jurat and files the claim wl'chthe
Comptroller; in other instances the notaries
maintain a permanent card file on each claimant
they serve showing the kind of tractor or tractors
owned, the acreage farmed and the kind of crops,
and acreage usually planted to each, from which
general information he prepares, notarizes and
files the claim form signed in blank and left with
him by the claimant.
"We have recently Snterviewed eighty-eight
(88)farmer-claimants whose claims were prepared
by four notaries public in S,outhEast Texas, of
Hon. Robert S. Calvert, page 2, w-479
which 57 of them (64%) stated in affidavits that
the claim form was signed in blank and left with
the notary public to complete later.
"Investigation showed that a number of the
claimants had used different kind of tractors or
equipment from that stated in the claim form. In
other instances the actual acreage tilled and the
crops grown were different from that shown on the
claim as filed. In a few instances -the claimant
admitted that a part of the motor fuel upon which
claim for tax refund was shown as used in tractors
was actually used for taxable purposes on the
highways.
"The claims, when they reached the Comptroller,
all appeared to be regular and in proper form and
would have been pald had not they been Investigated.
"1 . Will you therefore please advise whether
-in view of the requirement In Section 13(f)
. e .fif Article 7065b, V.C.SJ that a refund
claim . . . shall be verified by affidavit of
the claimant - the Comptroller can legally
approve a tax refund claim form signed in
blank by a claimant and left with a notary
public who, at a later time and after the
claimant has departed from his presence, fills
in the gallonage and other requisite infor-
mation from a memorandum OP oral information
previously supplied by the claimant, after
which he executes his jurat and files the claim
with the Comptroller without further contact
with the claimant?"
Article 7065b-13(a) reads as follows:
"(a) In all refund claims filed under this
section the burden shall be on the claimant to
furnish sufficient and satisfactory proof to the
Comptroller of the claimant's compliance with all
provisions of this Article; otherwise, the refund
claim shall be denied."
Article 7065b-13(f) reads, in part, as follows:
II The refund claim, . . . shall be verified
by affidavit of the claimant, or a duly authorized
agent of the claimant, and shall show the quantity
of refund motor fuel acquired and on hand at the be-
Hon. Robert S. Calvert, page 3,
ginning and closing dates of the period covered
in the refund claim filed.
II. 0 . The claim for tax refund shall include
a statement that the information shown in each dupli-
cate invoice of exemption attached to the tax refund
claim is true and correct, and that deductions have
been made from the tax refund claim for all motor
fuel used on the public highway of Texas and for all
motor fuel used or otherwise disposed of in any man-
ner in which a tax refund is not authorized here-
in....
"If the refund motor fuel for which tax refund
is claimed was used on a farm or ranch or for any
agricultural purpose the claim shall show the make,
model, and year of manufacture of each tractor,
combine and other vehicle in which any refund motor
fuel included in the claim was used and the actual
work performed, showing the different kinds of crops
planted and the acreage used or set aside for each
crop, during the period of the refund claim, and
showing complete information of all other work per-
formed by each such tractor, combine or other ve-
hlcle used by the claimant during the period of the
claim. The claim shall likewise show the make, kind
and horse power of each stationary engine or motor
in which refund motor fuel was used by the claimant
and the purposes for which it was used, and if any
of the motor fuel included in the claim was used
other than in the operation of motors or engines,
the claim shall show complete information as to the
manner of use and the purpose for which the motor
fuel was used. The claim shall also state the number
of automobiles, trucks, pickups and other licensed
vehicles operated regularly by the claimant or his
employees, on or in connection with the farm, ranch
or other agricultural project, and shall show the
name and address of the dealer or dealers from whom
taxable motor fuel was purchased for use in such
licensed vehicles during the period of the claim.
,I* . . . . s
"It shall be the duty of every person claiming
tax refund to verify the contents of the claim filed
and any such person who shall file claim for tax re-
fund on any motor fuel which has been used to propel
a motor vehicle, tractor or other conveyance upon
the public highway of Texas for any purpose for which
Hon. Robert S. Calvert, page 4, w-479
a tax refund is not authorized herein, or who shall
file any duplicate Invoice of exemption in a claim
for tax refund on which any date, figure or other
material information has been falsified or altered
after said duplicate Invoice of exemption has been
duly issued by the refund dealer and delivered to
the claimant, shall forfeit his right to the entire
amount of the refund claim filed."
The statute also makes detailed provisions for tax re-
funds on motor fuel used in vehicles traveling both on and off
the highway, but these provisions are pertinent only as they
further reflect the detailed procedure which must be followed in
order to obtain a tax refund.
In view of the specific requirement that the refund
claim shall be verified by the affidavit of the claimant, and in
view of the express impostion upon the claimant of a duty to
verify the contents of the claim filed, the Comptroller cannot
approve a tax refund claim prepared In the manner that the claims
described by you were prepared.
We quote the following additional question which you
have submitted to us:
"2. When a Notary Public executes and signs
a notary's jurat certifying that a claim for tax
refund has been subscribed and sworn to before him
by the claimant, when in truth and in fact said
claimant had signed the claim form in blank and
left it with the Notary Public, who at a later
time and after the claimant had departed from his
presence filled in the requisite information, ex-
ecuted his jurat and filed the claim with the
Comptroller, will such certification In his jurat
constitute the making of a false statement by said
notary public in a claim for tax refund delivered
to and filed with the Comptroller, as contemplated
by Section 27(m), cited above?"
Article 7065b-27 reads, in part, as follows:
I,
. . .(m) whoever shall wllfully and knowingly make
any false statement in any claim for a tax refund
delivered to or filed with the Comptroller, shall
be guilty of a felony e . .'
We do not think that the notaries' acts in the cases you
have described to us come within the above quoted provision of
Article 7065b-27. We think that this provision pertains to false
Hon. Robert S. Calvert, page 5, w-479
statements made by claimants for tax refunds and that the false
statements contained in the notaries' jurats are not covered by
this provision. However, we call your attention to Article 361,
Penal Code. Article 361reads as follows:
"If any officer authorized by law to take depositions
or administer oaths in this State, shall falsely
certify that any deposition was sworn to before him,
or any oath made,'or shall with fraudulent intent
place his certificate, signature or seal to any
affidavit which is drawn with blanks as to any other
matter of substance, he shall be imprisoned in the
penitentiary not less than two nor more than five
years. Within the meaning of this article shall be
included the case of an officer who, with design
that the same may be filled up and used for fraudulent
purposes attaches his signature or seal of office to
any paper wholly blank."
SUMMARY
The Comptroller cannot approve motor fuel tax
refund claim signed in blank by claimant and later
filled in by notary public with executed jurat, and
notary's act in filling in the form and executing
the jurat does not constitute a felony within the
provisions of Section 27(m) of Article 7065b, V.C.S.
Very truly yours,
WILL WILSON
Attorney General of Texas
By s/Marietta McGregor Payne
Marietta McGregor Payne
Assistant
MMP/bs/wc
APPROVED:
OPINION COMMITTEE:
Geo . P. Blackburn, Chairman
Jay Howell
J. Milton Richardson
Edward Casares
Riley R. Fletcher
REVIEWEBFOR THEATTORNEYGENERAL
By: W. V. Geppert