Untitled Texas Attorney General Opinion

_1 .. ~C. ‘: *...i... I:- : OFFICE OF THE AlTORNEY AUSTIN GENERAL OF TEXAS aRQ”LR SLLLL~S I Honorable Geo. Ii. Sheppard Comptroller 0r Public AOoount8 State of Texas iruatin, Texas Dear Sir: Opinion No. c-k.6 Rer Tirms allow claim for reiund OW gallons of gasoline llaensed dealer,:and obtalm t the time 05 Usll~ery. of dell~sry, under date of r0queeting r0itma or tax on P the Comptroller ieaues warrant refunding i gaZlons uPed. OThe question now arises as to when limitation run@ on the r&and or the tax on the remaining 500 gallons. wb4mtion a or .s,eotlon 13 or the'ldotor Fuel A6t . read8 in part at3 follows: 3.. “, 405 , .^. uonorable Ceo. 3. Shep.jard, page 2 nV:!:hon e olaimant purchases or aoqukres for use motor fuel upon which a refund, of the tax lnay be due, he shall within six (61 months from the date or delivery o.f the motor fuel upon whloh a refund is olaimed, and not thereafter, file with the Comptroller an affidavit upon suoh form as may be presoribed by the Comptroller. . . ncNo refund shall be made where motor fuel is usea later than six (6) months from date of delivery or appro- priatlon, and no refund shall ever be made where it appears Won the invoice, or from the afS&avlt, or other evoidenoe .~ submitted, that the sale or delivery was made more than six (6) months prior to the date of filing of the applloa- tion for refund. The date of filing shall be the day suoh olala Is actually reoelved ln the .Comptraller*s offloe. In addition to other penalties presoribea In this Artiole, It is herein provided that a felony oonvlotion for a viola- tion of any provision of this Seotion of eaid Articls shall automatioallp forfeit the right of said oonvioted person to sell motor fuel for refund purposes, and shall forfeit the right or said oonvloted person to rile a olaim and obtain a refund ror a period of one (1) year from the date of said oonviotion.9 "You all1 note from the above quoted Seotion that it provides no reiund shall be mado where the motor fuel is used ;;iy than six months fron the date of dsliVtprs or aPProDrla- A *Must the olalmant use the 500 gallons and file hie olalm with the Cowtroller by July 1, 1944, whloh Is 8lx months frsm&e, date of delivery, or does he have until IWvember 1, 19l4, 5.r whloh to use the motor fuel and file his alaim, which later date is six months from the date he filed his former olaln? Vhen a olalmanthas riled his claim in due order and time, showing ti or motor .fusl on hand and unused in qucmttty such olalm, does the phxase 'or appropriation* extend the period ol linitatlon on the quontlty, on hand for six months fro,x data suoh olaim is filed with the Comptroller?W In this oonneotion it is neoessary to oonstrue the- various subaeotions of Geotion 13(d), Artiole 7065(b), Vernon’s hnotatea Civil Statutes, in order to olassify the persons entitled to a refund or the motor fuel tax thereunder. 406 i:,,, ao?lorable Geo. II. Sheppard, page 3 The term 9efuud dealer" Is defined by the Artiole aa rollowe 8 \ “The tern *refund dealer* wherever used in thla Artlole shall mean any dealer, distributor, or other person who engages in the sell1 aJ)roDrlataB for his Own use ~o",'s~;~r,,'u2t:; a El on which a refund of the tax paid on suoh mDtor fuel lB authorized by this Artiole.n SubBeOtlon (i&j or Seotlon 13(d) of the Artt01e defines ths two olasses of usere entitled to tax refunds as follcmsr “anj- person who wrohasee motor rue1 In the State or Texa8, ati tinydistributorwho awroDriates motor rue1 for use. . . shall be refunded the amount 0r euoh taxse . . .v Subseotlon (b) of Se&ion 1.3(d)of the Artlole pro- vides for the lssuanoe of a refund UealQr~s lloenee to aell ruoh motor fuel, ana is In part as folltxws: 9?0 refund of the tax shall be granted to any permm, 01 numt Era, oorporation,or otherwise,uuless suoh iii&if el has been ohasea rr0m or usea bs a lloensed refund dealer as pr is Art101e: . . ." Subseotion (0) or SectlOn 13(d) or the Artiole~:prcnldrn Sor involoes of exemption to *be demanded by the purohaaer or for refund purposss, and upon eaoh or upon saofi sromiation r0r use of. tax my be olaimed, an invoioe Of exemption shall be issued ahowlng the date of Buoh dellver~, Or of snob apDroprlation for use . . .v Subsection (a) of Seotlon 13(d) of the Artlole provides for the filing %na payment of Olalms for refund; -(aI Zhen a olalmant purchases or acaulres for use motor Cue1 upon which a refund of the tax may be due, he shall within six (6) months from the motor fuel upon which a refund is 01 rile with the Coaptra3J.er an arfidav presarlbed by the ComptrolSer. S ln .. Honorable Gee. K. Shepwrd, page i+ “No refund shall be made when motor fuel la used ---- later thas sir (6) months from the date OS Uellve; F9or appropriatioQ and no refund shall ever be .-de when it appears from the luvoioe, or fro= the afSi&mlts, or other eVldencs submitted, that the sale or more than six (6) months prick the the amlloatlon SOT r8Sund.W (3mphasss ours) Brom the foregoing subsootiom it is apparent that the Legislature intended to and did distinguish between a prtson who purohases motor fuel for us%. and a distributor who rotor Suol for use. !Phroughout these subaeo t ione the word8 *purohasi3w, Tdell* or *aale” and ndelivew is applied to a person who urohasos motor fuel from a lloenaed dealer upon whl.oh a clak!i tax ~ofund may be filed, while the ueage oS the word8 *appropriation” or *Appropriate for useW and *AOQU~ZW* or *aoquisition~ is applied to a dlstrib tor who ro riate@ or sets aside e portion of motor ---&hxom hie ;- to be used r0r the speoifle purposes set rorth in the Artlole entltllng him to a rel’und OS the tax. prior to July 1, 1944. In mswer to ths eeoonb question, since the olaiment wae~a purchaeer Srom a lloenaed dealer and not a distribute who ~pProJtr%atrd suoh motor Sue1 the phrase “or approprewouia 8 not extend the period OS limitation OS US8 or filing hi8 olaim for refund within 83.x (6) aonthe Srom the dote o? dellvem of 8Uah motor fuel to him. Trusting that the foregoing Sully snswers your questlone, we are Yours very truly I