PRICE DANIEL ATTORNEY

GF.NERAL September 17, 1949

Hon. Robert S. Calvert, Opinion No. v-906. Comptroller ofPublic Accounts Austin, Texas Re: Assignability ofa creditia taxes paid on oil fram tank bottoms under Article 7057~1, V.C.S. Dear Sir:
* Your letter request inreference to the above captioned

matter reads inpart as follows:

“During the period from Jiqly, 1942, to December, 1946, Petrolite Corporation, Ltd. was producers (sic) ofoil inthe East Texas fields, and their source ofproduction consisted ofof1 obtained from tank bottams

. During this period they paid into the State $9,407.51. OnFebruary 5, 1947, the Comptroller notified Petrokite Corporation ofthe Stack Case (199 S.W.Zd 701) and advised such corporation that they were due no more tax as the producer on oil obtained from tank bottoms. “Petrolite Corporation filed noreport of **preduc** ing oil from any other source in Texas. Section 13of Article 7057a, provides:

‘(13). When it shall appear that a taxpayer to whom the provisions ofthis **Act sinall**  apply has erroneously paid more taxes than were due

### during any tax paying period either onthe account ofamistake offact or law, it shall be the duty oftheState Comptroller to credit the total amount oftaxes **due** by such taxpayer for the current pertod with the total amount oftaxes so erroneously paid.’ Petrolite Corporation has **been** unable to take credit for the $9,407.51 paid ontank bottoms because it is not at tke present t&meaproducer ofoil.Hon. Robert S. Calvert, Page 2 (v-906)

“Petrolite Corporation has by an assignment, assigned the credit due it toRock Hill Company ofSan Antonio, Texas, which company is a regular producer and would be authorized to a credit, should such company make erroneous tax payments. This Department is now confronted with the question as towhether we are authorized toallow Rock Hill Company to take credit onits current tax payments with the amount due Petrolite Corporation properly assigned to it.

“I shall thank you to advise this Department whether we are authorized to permit Rock Hill Oil Company, aproducer, totake credit onits current tax payment of $9,407.5 1,which amount has been assigned to itby Petrolite Corporation, Ltd.*

vides: Subsection 13 ofSection 1,Article 7057a, V.C.S., pro-

“(13). When it shall appear that ataxpayer to whom the provisions ofthis Act shall apply has erroneously paid more taxes than were due during any tax paying period either onthe account ofamistake of fact or law, it shall be the duty ofthe State Comptrolkr to credit the total amount oftaxes due by such taxpayer for the current period with the total amount oftaxes so erroneously paid.” The Comptroller ofPublic Accounts has only those powers which have been expressly delegated tohim by the Legislature, and those implied powers which are necessary for Mm to carry out the powers expressly given.

You will note that subsection 13above quoted authorizes the State Comptroller to credit the total amount of taxes due by the taxpayer for the current period with the total amount oftaxes erroneously paid and innowise proasides that the Comptroller has the power or authority to give this credit toanyone else.

You further ask inyour opinion request whether the credit might be allowed the Rock Hill Company onthe theory that the Rock Hill Company and the Petrolite Corporation, Ltd. are one and the same corporation inthat the stock ownership and the governing officers ofthe two corporations are sufficiently related so that the two corporations could be considered one and the same. It appears from the file submitted to us that the Petrolite Gorporation and the Rock Hill Oil Company are two separate and distinct corporations. They are two separate legal entities. These corporations evidently recognize the fact that they are not one and the same or they would not have made the assignment in question.. -

Hon. Robert S. Calvert, Page 3 (V-906)

You **are,** therefore, advised that theState 

### Comptroller does not have theauthority to credit the Rock Hill Company with taxes erroneously paid by the Petrolite Corporation, Ltd. However, the Petrolite Corporation is notwithout a remedy, ifinfact the taxes erroneously paid were notavoluntary payment but were paid under duress as set out inyour request. Itcan file its claim for a refund with the next Legislature, which will have the authority under our Constitution and laws tomake an appropriation in the amount so erroneously overpaid.SUMMARY

The State Comptroller does not have the authority to credit the Rock Hill Oil Company with oil production (tankbottom) taxes erroneously paid by the Petrolite Corporation, Ltd., onan assignment ofthe credit due the Petrolite Corporation, Ltd. The Comptroller may credit only the taxpayer who made the overpayment, and not his assignee. Art, 7057a, Sec. 1, subset. 13, V.C.S. Yours very truly ATTORNEYGENERALOFTEXAS



### BY W. V. Geppert

Assistant
WVG/mwb

ATTORNEYGENERAL