f?RICE
DASIEL
.\,mtSEY
GESERAL April 28, 1947
Hon. George H. Sheppard opinion No. v-170
Comptroller of Public.Acccunts
Austin, Texas BE: The refund of
motor fu8l tax
to one converting
naphtha to light-.
er fluid for mark-
., eting in small
.contaQers.
Dear Mr. Sheppard:
In your letter of April 9, 1947,.gcu re-
quest the opinion of this department upon the appli-
cation of the Gibson Products Company, Seagoville,
Texas, for refund .of motor fuel taxes paid by- said
concern upon naptha (ooming olearlp within the d&i.-
nition of motor fuel) which it purchased and put up
in ssall containers for sala as cigarette and c,igar~.
lighter fluid.
seot:od~ Artiole 7065b,
... provides as .
follows:
"Any person who puro,hasesmotor
fuel in the State of Texas, and any
distributor who appropriate8 motor
fuel for use when such motor fuel pur-
chased bg such person or used by such
distributor ior operating or propel- .' .~.
lingany stationary gas engine or trac-
tor used ior .agricultT+ralpurposes,
motor boats, airoraft, or for any pur-
pose other than use in a motor vehicle .
operated or intended to be operated in
whole or-in part upon any of the public
highways, roads, or streets-of the
State of Texas, on which motor fuel tax
has been paid, either directly or indi-
rectly, shall be refunded the amount.of
such taxes so paid, b' the distribqtor,
exclusive of the one 9 1) per cent de-
duction allowed distributors upon the
first sale, distribution or use of said
. .
Hon. George H. Sheppard - Page 2 (V-170)
motor fuel, for Collecting and remit- ;!.
ting the tax and for evaporation and :.,
other losses in the manner and subject ~;
to the limitations and conditions de-
scribed herein. Provided, however,
that no greater emount shall be refund- ,i.:,
ed than has been paid'into.the Treasury 'yj
on any motor fuel. The tax actually $$
paid by any distributor or person shall
be refunded-'as:pxovidedherein ~01%
fac- :
tor fuel not subject to the tax.*
kletily before the Gibson Products Company
'is entitled t0.a refund, it must establish its right
th8r8tOYund8r the terms of said statute. The only ba-
sis.upon~which the~'GibsonProducts Company can qualify
for a refund.ie that portion of the statute reading a6
follows:
." .,
n :. or for any purpos8 oth8r
than us: in a motor vehicle Op8Tat8d'or
int8eded to b8 Op8I&t8d in whole.or in '._' '.
paasupoe any of the public highways, . Ed
or streets of the Stat8 Of.Texas, .' %
on which motor rue1 tax'haa been paid,
either directly or 'indireotly. .:.,."
: ' '.
Concededly, the us8 to which this concern' ,!.
appropriates the naphtha, namely,, conv8rting it into
cigarette and cigak lighter fluid sold'in small quan- i
titi8S iS a use for SOm8 other pUFpOS8 other th8n us8
in a motor vehicle operated or intended to be operated" :'
inwhole or in part on any of-the public highways, &a.,
Of the State.
We are of the opiqion that the Gibson Prod-
ucts Company is in truth the consumer aS COnt8mpk&8d,
under the statute rather than the purchaser of the mll
quantities of cigarette and cigar lighter fluid oon-
verted by the oonsum8r into these.small quantiti8S and
sold promiscudusly to the ultimate users of this fluid.
It follows that the Gibson ProduotS Company 18 entitled
t0 a refund as a qualified COnSUU8r'fOr a.purpose other
than use in a motor vehicle operated or intended to b8
operated in whole or in part upon any of the'pubdio high-
ways, roads, eto.j'of this State.'.We assume, of course,
that it has met the.'otherprov%sions of'the statute in
regard to timely filing application for refund and has
made use of the naptha,'a motor fuel; within the..time
prescribed by other provisions of the Statute. I
. l
Hon. George H. Sheppard - Rage 3 (V-170)
If naphtha, a motor fuel, is con-
verted into cigarette and cigar lighter
fIuid and sold as the latter product, on8
who converts such motor iU81 into such
US8 is under the terms of Article 7065b a
contnmef and entitled~to a reiuad as a
consumer for us8 other than in a motor
vehicle Operated or intended to be oper-
ated in who18 or in part upon any Of th8
publio highwaya, roads or streets of the
State of Texas; provided, such con&uaer
08I1qualify under the other provisions of
the act in timely Presentin&?a claim for'
r8tUd and in the tiUl81yuse of the motor
fuel thus converted.
Yours very truly
ATTORNEYWiNERAL OFTRXAS
LFL/lh/wb ' li
APPRUVED APRIL 28, 1947
2.L a!iiiLd
ATTORNEY GRRERAL OF TBx4s