November 19, 1948 

Honorable Gee. H. Sheppard Opinion No. V-721 

Comptroller of Public Accounts 

Austin, Texas Re: Authority of the Comptroller to refund motor 

fuel taxes when the affidavit shows that the fuel 

was used within six months 

from the date of delivery, 

but the claim was not filed 

until the expiration of six 

months from the date of 

delivery. 

Dear Mr. Sheppard: 

You request the opinion of this office upon the two questions presented in your letter of October 22, 1948, which we 

quote in full as follows: 

“A claimant for refund of motor fuel tax made 

some twelve purchases of motor fuel totaling 1485 

gallons between the dates July 9 and November 29, 

1947. An invoice of exemption was properly issued 

to cover each separate delivery, the last exemption 

being for 275 gallons delivered on November 29,1947. 

“On January 7, 1948 the claimant had used only 

1265 gallons of the total purchased so he filed claim 

for refund of the tax on this amount, showing the balance of 220 gallons as being carried on hand and unused at that date, and warrant was issued to pay the 

refund on the 1265 gallons. 

“After January 7, 1948 the claimant continued to 

use the fuel on hand, purchasing additional quantities 

from time to time totaling 770 gallons, and on June 

23, 1948 he again filed claim for the 770 gallons plus 

the 220 gallons carried forward from the previous 

claim. The Comptroller notified the claimant that 

the 220 gallons carried forward had been purchased 

on November 29, 1947 and must be deducted from 

the currect claim because more than six months 

had elapsed between the purchase date of November 

29, 1947 and the date the current claim had been filed 
Hon. Geo. H. Sheppard, Page 2 (V-721) 

on June 23, 1948. This action was taken in view of 

Subsection (d), Section 13, Article 7065(b) Vernon’s 

Annotated Civil Statutes of Texas which reads in 

part as follows: 

“‘When a claimant ‘purchases or acquires 

for use motor fuel upon which a refund of the 

tax may be due, he shall within six (6) months 

from the date of delivery of the motor fuel upon which a refund is claimed, and not thereafter, file with the Comptroller an affidavit, 

on such form as may be prescribed by the 

Comptroller. . . . 

“‘No refund shall be made where motor 

fuel is used later than six (6) months from 

date of delivery or appropriation, and no refund shall ever be made where it appears from 

the invoice, or from the affidavits, or other 

evidence submitted, that the sale or delivery 

was made more than six (6) months prior to 

the date of filing of the application for refund. 

The date of filing shall be the day such claim 

is actually received in the Comptroller’s office. . .’ 

“This department has construed the above provision to clearly preclude payment of a claim until the 

motor fuel has actually been used since payment of 

the claim is conditioned on proof that the motor fuel 

has been used within six months from the date it was 

delivered to the claimant. Since a claim cannot be 

paid until the fuel has been used the Comptroller has 

likewise held to the view that the actual use of the 

fuel for exempt purposes constitutes or establishes 

the claim for refund and that a claim does not exist 

until the fuel has been used for exempt purposes, and, 

therefore a purchaser could not legally file on a claim 

that does not exist until the motor fuel has been used 

for exempt or refundable purposes. 

“The claimant in this instance, however, contends 

that when he reported the 220 gallons of fuel, purchased for exempt use, as being on hand and unused 

in his claim filed January 7, 1948 that such report 

constituted a claim for refund on the tax as of the 

date of the claim and that tax refund on the said 220 

gallons can be legally paid when the motor fuel has 

been used for refundable purposes subsequent to the 

date the claim was filed provided that subsequent 
Hon. Geo. H. Sheppard, Page 3 (V-721) 

proof has likewise been furnished to show that said 

motor fuel was used for refundable purposes within six months from the date of its delivery to the 

claimant. 

“The Comptroller has been furnished proof that 

the 220 gallons of motor fuel involved here was used for refundable purposes within six months after 

it was purchased on November 29, 1947. 

“Your answers to the following questions are 

therefore respectfully requested: 

“Can the Comptroller legally issue a warrant to 

pay a claim for tax refund on motor fuel properly 

used for refundable purposes within six months 

after its delivery to the claimant, when said claim 

has been filed prior to the time such motor fuel 

has been actually used for refundable purposes? 

“Does filing a claim within six months from the 

date of purchase and delivery of motor fuel which 

claim shows that the motor fuel is not used at the 

time of filing the claim, lift the six months limitation prescribed by Subsection (d), Section 13, 

Article 7065(b) Vernon’s Annotated Civil Statutes 

of Texas and authorize the claimant to file claim 

on the motor fuel at a subsequent date when the 

motor fuel is used within six months from the date 

of purchase and delivery? w 

It is necessary for us to consider Subsection (d), Section 13, of Article 7065(b), V’. C. S., quoted in your letter. 

We need be concerned only with the question of the 220 

gallons of motor fuel delivered to the claimant November 

29, 1947, as reflected by the last exemption certificate. 

On January 7, 1948, the claimant filed on Form 7065-E 

his Affidavit of Claim for refund of the tax paid on exempt motor fuel as provided under the statute on the motor fuel he had used up to that time. The claim showed the 

purchase of 1485 gallons of motor fuel, but only 1265 gallons 

had been used, and 220 gallons was on hand at this date not 
Hon. Geo. H. Sheppard, Page 4 (V-721) 

used, all as reflected by the Affidavit of Claim received in 

the Comptroller’s office January 7, 1948. 

Apparently it is claimant’s contention that his Affidavit 

of Claim filed January 7, 1948, on which was shown this 220 gallons of motor fuel as unused constituted a claim for refund of 

the tax paid thereon, and that his subsequent Affidavit of Claim 

received by the Comptroller on June 23, 1943, showing the use 

of this 220 gallons of motor fuel within six months from the 

date of delivery was a sufficient compliance with the statute. 

To this we cannot agree. Our view is that the claimant did not 

actually file his Claim for Refund on this 220 gallons of motor 

fuel until he filed his second Affidavit June 23, 1948, which did 

in fact show the use of this motor fuel within the six-months’ 

period from the date of delivery. Even though this Affidavit 

showed the use of this motor fuel within the six-months’ period, it is quite obvious that the claim was not filed within six 

months from the date of delivery November 29, 1947, as required by the terms of the foregoing statute. 

If the subsequent Affidavit of Claim, which showed the 

use of this motor fuel together with the use of other motor fuel 

purchased subsequent to the filing of the first claim, had been 

filed within six months from November 29, 1947, instead of 

June 23, 1948, said 220 gallons would be subject to a tax refund, and no question could arise as to the time of filing of 

the claim. 

The statute clearly contemplates that a claim for refund 

be filed after the use of said motor fuel and not before. This is 

manifest from the following excerpt from the statute quoted above, describing what the affidavit, which is in fact the claim, 

should contain. Some of the provisions are: 

“Use for purposes other than in propelling motor 

vehicles over the highways of this state . . .; manner in which said motor fuel was used, and that no 

part of said motor fuel was used in propelling motor vehicles over the highways of this state . . .; 

that no refund shall ever be made when motor fuel 

is used later than six months from the date of delivery.” 

We think, under the statute, the claim that was filed June 

23, 1948, and not the one that was filed January 7, 1948, was the 

claim which the Comptroller was required to consider in determining if the claim had been filed within six months from the date of 

delivery. If this be true, then the claim was filed later than six 

months from the date of delivery, November 29, 1947, and hence 

cannot constitute the basis for refunding the taxes. The statute 
Hon. Geo. H. Sheppard, Page 5 (V-721) 

clearly says: 

“When a claimant purchases or acquires for use 

motor fuel upon which a refund of the tax may be 

due, he shall within six (6) months from the date of 

delivery of the motor fuel upon which a refund is 

claimed, and not thereafter, file with the Comptrolpm as may be prescribed 

by the Comptroller.. . .” (Emphasis ours) 

The following, therefore, will answer both your questions: The Comptroller may not issue a warrant to pay a tax 

refund claim on motor fuel, unless, as provided in Article 7065(b), 

Subsection (d), Section 13, the motor fuel has been used and 

claim filed within six months from the date of delivery. No 

claim arises until the motor fuel is used; hence the claim must 

be filed after the use and not before. 

SUMMARY 

The Comptroller is not authorized under the terms 

of Art. 7065(b), Subsection (d), Sec. 13, to issue his 

warrant refunding taxes on motor fuel unless the motor fuel is used and the claim filed within six months 

from the date of delivery to the purchaser. A claim 

cannot be filed until the motor fuel is used. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

LPL/JCP 

By Lxzo~- . 

Assistant 

APPROVED: 

ASSISTANT 

GENERAL