Untitled Texas Attorney General Opinion

Hon. Robert S. Calvert OPINION NO. WW-437 Comptroller of Public Accounts Capitol Station Re: Whether Comptroller Austin, Texas, may permlt correction of Inaccurate claim for re- fund of motor fuel taxes Dear Mr. Calvert: subsequent t6 Its filing. We ,q&te the followlng,excerpt from your letter of April 29, '1958,requesting our opinion on the above cap- tioned matter: "The claimant filed a claim, duly sworn to, for refund of tax paid on 8,465 gallons of motor fuel shown In the claim form to have been used entirely off the roads and highways, refundable, and In the space on the claim form headed, 'Qallons Used on Roads and Highways, No Refund', the word 'none' had been typ:d In. "Investigation of the claim In the field re- vealed that a considerable part of said motor fuel Chad beerIused taxable In trucks, pickups and a Jeep on the highways. "The claimant stated that the claim had been prepared by a new bookkeeper aided by the local Farm Bureau Office, and that he signed the claim without noticing that the taxable highway fuel had not been deducted. All previous claims filed over the years showed careful preparation and large deductions for taxable highway use. Obviously, the claim was filed without wllful Intent to obtain tax refund to which he was not entitled." The Comptroller's form 7065-11 for farmers and ranchers making an affidavit for claim of refund also contains the following question: "Have you used any fuel covered by Invoice of exemption on the roads and highways In any ve- hicle (,lncludingtractors hauling products, or doing c:stom work)?' To this question the applicant answered "yes. Thus the claim was Inconsistent on Its face. The Invoices of exemption which were attached to the application and Hon. Robert S. Calvert, page 2 (WW-437) which were made out at the time the gas was used correctly stated the amount and purposes for which It was used. You ask whether the entire claim has become forfeited or whether the Comptroller may allow a revlslon of the application so as to permit recovery of the amount of refund to which applicant was actually entitled. Article 7065b-13, Vernon's Civil Statutes, authorizes a refund of motor fuel taxes In certain Instances. We quote. the following pertinent provisions of this article: "(a) In all refund claims filed under this section the burden shall be on the claimant to furnish suffl- ,,clent and satisfactory proof to the Comptroller.of the clalmant~s compliance with all provisions of this Article; otherwise, the refund claim shall be denied. "(b) Any person (except as hereinafter provided), who shall use motor fuel for the purpose of operating or propelling any~statlonary gasoline engine, motor- boat, aircraft, or tractor used for agricultural pur- poses, 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'pald the tax Imposed upon said motor fuel by this Article, either directly or Indirectly, shall, ivhensuch person has fully complied with all provisions of this Article and the rules and regulations promulgated by the Ce tax paid by him less one and one-half per cent (l&6) allowed distributors. wholesalers and jobbers, and retailers under the provisions of Section 2 (b)of this Article . . . I, . . . "(f) Any person entitled to file claim for tax refund under the terms of this Article shall file such claim with the Comptroller on a form prescribed by the Comptroller within six (6) months from the date the motor fuel was delivered to him, or from the date,the motor fuel was lost, exported or sold to the United States Government, and no refund of tax shall ever be made where it ~appears from the invoice of exemption, or from ,theaffidavits or other evidence submitted,, that the sale or delivery of the motor fuel was made more than six (b) months prior to the date.the refund claim was actually received In the Comptroller's office. Ron. Robert S. Caivert, page 3, (,>X-437) The refund.clalm, with all dupXcate Invoices of exemption required by law to be Issued with the sale of refund motor fuel Included as a part of said claim, shall be verified by affidavit of the claimant, or a duiy authorized agent of the clalm- ant, and shall show the quantity of refund motor fuel acquired and on hand at the beginning and closing dates of the period ccvered in the refund claim filed. "It shall be the duty of every person claiming tax refund to verify the 'contentsof 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 publ:c highway of Texas for any purpose for which a tax refund is not akthor:zed herein, or who shail file anv duollcate invoice of exemntion In a claim for tax refund on which any date, ‘figureor other material Information has been falslfled or aitered 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 clainafiled." (Emphasis supplied throughout.) We think that Article 7065b-13 is plain and unambiguous. Under Its specific terms the claimant has the burden of show- ing compliance with all of the provisions of the article and the rules and regulations promulgated by the Comptroller. Such full compliance is requisite to reimbursement .ofthe tax. The claim for refund In this case did not fuliy comply, but, on the contrary, speclficaliy failed t0 exclude the amount Of gas which had been used in operating motor vehicles upon the public highways of this State. Hon. Robert S. Calvert, page 4, (W-437) The ". statute --_ speaks . -~ in clearly - mandatory . terms In stating that ciaim for tax In Cpini.onNo. v-1487 this office sdvl.sedyou that the tax refunds authorized by the Motor Fuel ?;ax :~aware in the nature of exemptions or exceptions and must be &trlctly con- strued. The statutory procedure mustbe strlct;y complied with in order to entitle the cfaims,nttc the right granted h?m by the statute. The results which ensue in thl.scase are no harsiierthen those which ensue In many cases where a taxpayer mistakenly or unintentionally fails to comply wlr,hthe provls:ons of t,ne law. Section ff) of Artl.c?e*(065b-13expressly provides that no refund of tax shail ever be mad? in those cases in wnich the sale or delivery of the motor fuei was made more than six months prior to the date the refund claim was rec~eived In the Comptroller's office. No one would question the manda- tory nature of this provision, yet a taxpayer tight aa lnno- cently and mistakenly fall to file his claim for reftlndwlthln the prescribed six months' period as he might mistake the number of gallons of motor fuei on which the amount of his refund should be based. As a practical matter, the taxpayer rather t.hanthe-Comptrolier must shoulder the burden of ascertaining the correctness of his claim, or the burdens of enforcing the Motor Fuel Tax law would be immeasurably Increased. in any event, regardless of our vler;as to the deslrabil- lty or undesirability of the result we have reached in this case, it has been stated tha~tIt Is the proper function of a court to enforce the law as made by the Legisiature rather than to announce what the law should be or to speculate as to why it Is as It Is. No court is authorized under any pretext to nullify, repeal or rewrite an unambiguous act to conform to its own notions of justice or wisdom. 39 Tex. Jur. 163, 164, Statutes, Sec. 89. Certainly this office could not do that which is beyond the authority of a court of law. You are therefore advised that the claimant in the case you have sub- mitted for our consideration has forfeited his right to'the entire amount of'the claimed refund. Hon. Robert S. Calvert, page 5, (:/;5;-:.!>7> SUMMARY Where claim for refund of motor fuel taxes included a claim for refund on motor fuel which had been used for a purpose for which a tax refund was not authorized, claimant forfeited his right to the entire amount of the.refund claim filed. Very truly yours WILL WILSON Attorney General of Texas APPROVED: OPINION COMMITTEE: George P. Blackburn, Chairman Howard Nays Leonard Passmore REVIRWEDPORTHE ATTORNRYGENERAL BY: W. V. Geppert