### THE OIWJEY GENEOF XAS

**L%cIS~ BB.**  **TEXAW**
**FvmLL WILSOiQJ**  **AT-TORNEY GENERAL**  August 

### 4,1961

Honorable Robert S. Calvert Opinion No.

### WW-1103 Comptroller of Pub1 ic Accounts Capitol Station Austin, Texas Re:~ Whether, under the facts stated, the Comptroller can legally pay the claim for arefund of tax on Dear Mr. Calvert: motor fuel.

Youhave requested anopinion as to whether or not you can legally pay aclaim filed for refund of motor fuel tax paid on gasoline used ona farm under astated set of facts.

Wequote from your letter request the following statement of facts: "The foreman stated that the Jeep

which bears 

### 1960highway license was used to haul hay, feed and fertilizer from the meadowto the farm, adistance of seven-tenths 

### (7/10)of amile over the highway, as well as the other travel over the highway from one entrance gate to another as set out in the letter. "The claim was rejected for failure to keep arecord of the travel over the highway and failure to deduct the fuel used on the highway in such travel andacopy of Opinion WW-199, holding that where nosuch record is kept and such motor fuel is not deducted from the claim atax refund is not authorized." Theclaimant has submitted abrief as to the facts and law in connection with this claim.

In his statement of facts he states that the farm is crossed byacounty road running East andWest through the farm.

Wequote from the brief submitted as follows:Honorable Robert S. Calvert, Page 2 Opinion No. WW-1103

1) *

. .Upon a more careful examination, the jeep is located in agarage on the north side of the road that runs east andwest. It crosses the road to that part of the farm on the south side of the road in front of the residence, in doing sousing the public highway for adistance of some twenty (20) steps or yards, andthis is the main andprincipal use, in the crossing of the public road.

“A second use: the jeep proceeds from the samegarage downto the same road andturns east one hundred and twenty (120) steps or yards, and then leaves the road. This is used perhaps on an average once aweek during the year, and the first one is used on the average of at least once daily.

“A third entrance into the farm south of the road, about six hundred (600) yards west of the residence and garage. This is used only semi occasionally onanaverage of once aweek.

“A fourth entrance about 900yards west of the garage from the public road is agate that is kept locked. This is wholly used by the jeep, possibly at times during the winter months.” Tomerely cross the road is not “being operated” upon the highways within the meaning of the statutes in our opinion and it is our understanding that the Comptroller’s Office has so construed the law in the past. Whenaperson enters the highway with amotor vehicle at one point andthen travels along the roadwayfor any distance the person is operating amotor vehicle upon the highway within the meaning of our statutes.

If it can be said that traveling along the roadway for one hundred yards is not operating a motor vehicle onthe highway then it could be said that twohundred yards is acceptable and so on and on. There would be no stopping point.

The Courts have uniformly~ held that tax exemptions are to be strictly construed. Refunds of gasoline taxes in amanner of speaking is atax exemption. tion, 8

### 74: Quoting from 40Tex.Jur. 109, Taxa-s. -

Honorable Robert S. Calvert, Page 

### 3 Opinion No. WW-1103

"It is auniversal rule, applicable to constitutional and statutory provisions exempting property from taxation, that"'when an exemption is found to exist it shall not be enlarged by construction. Onthe contrary, it ought to receive a strict construction; for the reasonable presumption is that the state has granted in express terms all it intended to grant at all, andthat unless the privilege is limited to the very terms of the statute, the favor would be extended beyond what wasmeant.' "Furthermore, the exemption of certain property throws agreater tax burden onproperty that is taxable: therefore, any exemption derogates from the commonright of equality of burden, and for this reason, also, both the constitutional provision authorizing the exemption andthe statute granting it must be found to cover aclaimed exemption unambiguously. For if the construction of the law be doubtful, the doubt will be resolved in favor of the taxing power andagainst the claim." Morris v. Lone Star Chapter No. 

### 6,R. A. Masons, 68Tex. 698, 702, 5S.W. 519 (1887). Opinion No. WW-199answers almost anidentical set of facts. About the only material difference is the distance traveled on the public road. In Opinion WW-199the distance traveled was 22 miles andin this case the longest distance traveled was 7/10 of a mile. As previously pointed out, however, the distance is not the determining factor.

It is therefore our opinion that in compliance with the former opinion above mentioned, acopy of which is enclosed herewith, under the facts stated in this request the claim for refund wasproperly denied.
SUMMARY

Under the facts stated the operation of a jeep over the highway of this state as amatterHonorable Robert S. Calvert, Page 4 Opinion No. WW-1103

of convenience to get from one point on the roadway to another does not permit atax refund 

### for gas used 

### on farm where norecord is kept of amount used in jeep while traveling on roadway or of distance traveled on roadway. 

### Yours very truly, WILLWILSON Attorney General of Texas

Assistant Attorney General JHB:jp APPROVED: OPINIONCOMMITTEE: W.V. Geppert, Chairman Iola Wilcox Gilbert Hargrave Henry Braswell REVIEWED

FORTHEATTORNEY GENERAL By: Morgan Nesbitt