May 19, 1948
.
Hon. George H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Opinion No. v-583
. Re: The applicability of the
Texas motor fuel tax to
motor fuel purchased by
the U. 9. Government and
ultimately used by the
Dear Sir: Texas National Guard.
Your request for an opinion on the above
question reads in part:
“We have requests from Texas motor
fuel distributors for approval by this de-
partment of tax exempt sales of motor fuel
to the United States Government for use ul-
timatelg by the Texas National Guard,
“An inqulrg addressed to Lieutenant
.’ Colonel Burton E, Miles of the Texas Na-
tional Guard who is also serving in the
capacity of acting United States Property-
Disbursing Officer, reflects that the Fed-
eral Government has In fact been purchasing
the motor fuel used by the Texas National
Guard under Supply Contracts of the Pro-
curement Division, United States Treasury
Department, which contracts provide for the
,,.exclusion of State taxes, but include Fed-
eral taxes 0 The motor fuel is paid for
,with U, S, Treasury checks or vouchers pro-
cessed by the Fort Worth Finance Office,
United States Army, Fort Worth, Texas.
Lieutenant Colonel Miles stated that all
of the Motor fuel purchased with Federal
funds is used in Federal vehicles owned by
the Federal Government and bearing War De-
partment Registration numbers. It appears,
however, that these vehicles are assigned
to and used by the Tex8s National Guard.
Han, George Ii, Sheppard, Page 2, (V-583)
“We are enclosing the letter from
Lieutenant Colonel Miles explaining the
transactions O a j
“We shall appreciate your advice as
to whether or not the motor fuel used by
the Texas National Guard is subject to the
Texas tax. ”
Lieutenant Colonel Miles0 letter discloses:
11 1 All units of the Texas Natfon-
al Guard are Federally recognized In the Ba-
tlonal Guard of the UnItei States before any
purchases are made a m c
Article 7065b - 2 provides in partz
“(a) There shall be and is hereby le-
vied and imposed (except as hereinafter
provided) upon the first sale, dlstrlbu-
tlon, or use of motor fuel la this State
an occupational or excise tax of Four (4)
cents per gallon or fractional part there-
of so sold, distributed, or used in this
State. Rvery distributor who makes a
first sale or distribution of motor fuel
in this State for any purpose whatsoever
shall, at the time of such sale or dlstri-
bution, collect the said tax from the pur-
chaser or recipient of said motor fuel, In
addition to his selling price, and shall
report aud pay to the State of Texas the
tax so collected at the time and in the
manner as hereinafter provided a O O
“(d) No tax shall be imposed upon
the sale, use, or distribution of any mo-
tor fuel, the imposing of which would con-
stitute an unlawful burden on interstate
commerce and which is not subject to be
taxed under the Constitution of the State
of Texas and the United States, In the
event this Article Is in conflict with
the Constitution or any law of the United
States with respect to the tax levied up-
on the first sale, distribution, or use
Hon. George H, Sheppard, Page 3, [V-583)
of motor fuel in this State, then it Is
hereby declared to be the Intention of
this Article to impose the tax levied here-
in upon the first subsequent sale, distrl-
bution, or use of said motor fuse1 which
may be subject to being taxed.
It is noted that purchases of motor fuel
are made for only those units of the Texas National
Guard that are federally recognized, Such units are
a part of the National Guard of the United States (32
U. Se C. A. Sec. 4a) which in turn Is a part of the
Army of the United States (10 U, 3, C, A. Sec. 2)*
The United States is empowered by its Constitution to
maintain and operate its armed forces (Art, l,Sec, 8)
of which the federally recognized units of, the Texas
Rational Guard are a part o
Since the early case of
1 nd 4 Wheat” 316, it h&s been t
+s *tes cannot exercise the right of taxation in res-
pect to any of the instrumentalities which the govern-
ment may create for the performance of its constitu-
tional functions. It Is true that the trend of our
decisions is not to extend governmental immunity from
state taxation and regulation beyond the national gov-
ernment itself and governmental functions performed b
Its officers, Penn. Dairies v, Milk Control Comm, 31 s
U, so 261s However, It Is still the law that any law-
ful function of the federal government Fn the perform-
ance of which the United States acts direct1 is con-
3tltutionally immune from State taxation, un 3 ess Coa-
ress consents, U. So v. State of New Ysrk, 140 F (2)
808, pff;lrmed 326 N, So 572,
Congress has not given consent to the scv-
era1 states to exact a tax oa motor fuel purchased by
the United States for ultlma%e we by units @f the
Army of the United States, nor l&as it give5 it8 con-
sent for the states to place the tu upe~ the use lf
such fuel by said units, We must, therefare, answer
your question in the negative,
”
Hon. George H, Sheppard, Page 4, (V-583)
The Texas Motor Fuel Tax (Art. 7065b,
V. C. 3,) is not applicable to motor fuel
purchased by the United States 5overnmeat
for use by the Federally recognized Texas
National Quard.
Your3 very truly,
ATTORNHYGENERALOF TEXAS
DMG:sh:mrj
ATTOREJXY
GERRRAL