CONCURRING OPINION
HUGHES, Justice.The following is taken from appellee’s brief :
“The facts are uncontroverted that part of Appellee’s records for the period in question were stolen and that there are records of such facts in the police department of Lake Worth, Texas. If Appel-lee’s records had been destroyed by fire, certainly it could not hold to be within the contemplation of the legislature that these statutes here involved would or should, merely by recitation of the re- ' quirements of keeping records, result in a person being held liable for taxes and penalty on his failure to present the records lost, stolen, or destroyed through no fault of his own. Certainly the taxing authority, Appellants here, should be reasonably expected and required to come forward with some evidence showing fault or some other act of misconduct by Appellee as a basis for placing full responsibility for the loss of the records and/or failure or refusal to carry out some duty imposed upon him by the act in question. No such facts have been plead nor proved by Appellants and no evidence controverting Appellee’s explanation of the loss of his records has been produced by Appellants. To the contrary, Mrs. Fitts’ testimony shows without contradiction that Appellee kept the required records that were later stolen. Appellee did not refuse to produce the records nor did he fail to keep the required records. They were stolen through no fault of Appellee.”
My construction of the statutes requiring the keeping of records is diametrically opposed to the interpretation placed upon them by appellee. The records required to be kept by a Distributor or Dealer for inspection by the Comptroller or the Attorney General are to be kept for a period of two years. Arts. 9.09 and 9.10. If absence of these records can be accounted for by the Distributor or Dealer by his, or his wife’s, testimony that they have been lost, stolen or destroyed, then the State of Texas is at the mercy of every such Dealer or Distributor insofar as the collection of motor fuel taxes from them is concerned.
The manifest showing the transaction between a Distributor and a Dealer is, or a copy, required to be kept by both Distributor and Dealer. It would be an unlikely coincidence for the records of both to be unavailable. When that situation is presented, the Courts will, of course, determine it. In this case, the records of the *95refineries from whom appellee’s wife claims he bought gasoline are available. They do not show that appellee bought from them the gasoline here involved. Under these circumstances it is my opinion that only by such records could appellee exonerate himself from liability for the taxes for which the State sues, and that the testimony of appellee’s wife is conclusively repudiated by the refinery records and amounts to no testimony in this respect.
Appellee has clearly made taxable sales of the gasoline for which taxes are sought, that is he has made sales on which taxes were or should have been collected. He has failed to show by competent evidence that the taxes on such gasoline sold by him have been paid to the State. The presumption contained in Art. 9.22, V.T.C.S., prevails and appellee, in my opinion, is liable for the taxes claimed.
I concur in the decision by the majority.