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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