November 

### 19, 1948

Honorable Gee. H. Sheppard Opinion No. V-721 Comptroller ofPublic Accounts Austin, Texas Re: Authority ofthe Comptroller to refund motor fuel taxes when the affidavit shows that the fuel was used within six months from the date ofdelivery, but the claim was not filed until the expiration ofsix months from the date of delivery.
Dear Mr. Sheppard:

You request the opinion ofthis office upon the two questions presented inyour letter ofOctober 22, 1948, which we quote infull as follows:

“A claimant for refund ofmotor fuel tax made some twelve purchases ofmotor fuel totaling 1485 gallons between the dates July 9and November 29, 1947. An invoice ofexemption was properly issued to cover each separate delivery, the last exemption being for 275 gallons delivered onNovember 

### 29,1947.
“On January 7, 1948 the claimant had used only 

### 1265 gallons ofthe total purchased so he filed claim for refund ofthe tax onthis amount, showing the balance of 220 gallons as being carried onhand and unused atthat date, and warrant was issued to pay the refund onthe 1265 gallons.
“After January 7, 1948 the claimant continued to use the fuel onhand, purchasing additional quantities from time to time totaling 770 gallons, and onJune 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 onNovember 29, 1947 and must be deducted from the currect claim because more than six months had elapsed between the purchase date ofNovember 29, 1947 and the date the current claim had been filedHon. Geo. H. Sheppard, Page 2 (V-721)

onJune 23, 1948. This action was taken inview of Subsection (d), Section 13, Article 7065(b) Vernon’s Annotated Civil Statutes ofTexas which reads in part as follows:

“‘When a claimant ‘purchases or acquires for use motor fuel upon which arefund ofthe tax may be due, he shall within six (6) months from the date ofdelivery ofthe motor fuel uponwhich arefund is claimed, and not thereafter, file with the Comptroller anaffidavit, onsuch 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 ofdelivery or appropriation, and norefund shall ever be made where itappears 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 offiling ofthe application for refund. The date offiling shall be the day such claim is actually received inthe Comptroller’s office.

. .’
“This department has construed the above provision to clearly preclude payment ofaclaim until the motor fuel has actually been used since payment of the claim is conditioned onproof that the motor fuel has been used within six months from the date itwas delivered tothe claimant. Since aclaim cannot be paid until the fuel has been used the Comptroller has likewise held to the view that the actual use ofthe fuel for exempt purposes constitutes or establishes the claim for refund and that aclaim does not exist until the fuel has been used for exempt purposes, and, therefore apurchaser could not legally file onaclaim that does not exist until the motor fuel has been used for exempt or refundable purposes. “The claimant inthis instance, however, contends that when he reported the 220 gallons offuel, purchased for exempt use, as being onhand and unused inhis claim filed January 7, 1948 that such report constituted aclaim for refund onthe tax as ofthe date ofthe claim and that tax refund onthe 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 subsequentHon. 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 ofits delivery to the claimant.
“The Comptroller has been furnished proof that the 220 gallons ofmotor fuel involved here was used for refundable purposes within six months after itwas purchased onNovember 29, 1947.
“Your answers to the following questions are therefore respectfully requested:

“Can the Comptroller legally issue awarrant to pay aclaim for tax refund onmotor fuel properly used for refundable purposes within six months after its delivery tothe claimant, when said claim has been filed prior to the time such motor fuel has been actually used for refundable purposes?
“Does filing aclaim within six months from the date of purchase and delivery ofmotor fuel which claim shows that the motor fuel is not used at the time offiling the claim, lift the six months limitation prescribed by Subsection (d), Section 13, Article 7065(b) Vernon’s Annotated Civil Statutes ofTexas 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 ofpurchase and delivery? w

Itis necessary for us to consider Subsection (d), Section 13, ofArticle 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 upto 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 notHon. Geo. H. Sheppard, Page 4 (V-721)

used, all as reflected by the Affidavit ofClaim received in the Comptroller’s office January 7, 1948.

Apparently it is claimant’s contention that his Affidavit ofClaim filed January 7, 1948, onwhich was shown this 220 gallons ofmotor fuel as unused constituted a claim for refund of the tax paid thereon, and that his subsequent Affidavit ofClaim received by the Comptroller on June 23, 1943, showing the use ofthis 220 gallons ofmotor fuel within six months from the date ofdelivery was asufficient compliance with the statute. To this we cannot agree. Our view is that the claimant did not actually file his Claim for Refund onthis 220 gallons ofmotor fuel until he filed his second Affidavit June 23, 1948, which did infact show the use ofthis motor fuel within the six-months’ period from the date ofdelivery. Even though this Affidavit showed the use ofthis motor fuel within the six-months’ period, itis quite obvious that the claim was not filed within six months from the date ofdelivery November 29, 1947, as required by the terms ofthe foregoing statute.

Ifthe subsequent Affidavit ofClaim, which showed the use ofthis motor fuel together with the use ofother motor fuel purchased subsequent to the filing ofthe first claim, had been filed within six months from November 29, 1947, instead of June 23, 1948, said 220 gallons would be subject to atax refund, and no question could arise as to the time offiling of the claim.

The statute clearly contemplates that aclaim for refund be filed after the use ofsaid motor fuel and not before. This is manifest from the following excerpt from the statute quoted above, describing what the affidavit, which is infact the claim, should contain. Some ofthe provisions are:

“Use for purposes other than in propelling motor vehicles over the highways ofthis state

. ..; manner inwhich said motor fuel was used, and that no part of said motor fuel was used inpropelling motor vehicles over the highways ofthis state

. ..; that no refund shall ever be made when motor fuel is used later than six months from the date ofdelivery.”
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 ifthe claim had been filed within six months from the date of delivery. Ifthis be true, then the claim was filed later than six months from the date ofdelivery, November 29, 1947, and hence cannot constitute the basis for refunding the taxes. The statuteHon. Geo. H. Sheppard, Page 5(V-721)

clearly says:

“When a claimant purchases or acquires for use motor fuel upon which arefund ofthe tax may be due, he shall within six (6) months from the date of delivery ofthe motor fuel upon which arefund is claimed, and not thereafter, file with the Comptrolpmas may be prescribed by the Comptroller..

. .” (Emphasis ours)
The following, therefore, will answer both your questions: The Comptroller may not issue awarrant to pay atax refund claim onmotor fuel, unless, as provided inArticle 7065(b), Subsection (d), Section 13, the motor fuel has been used and claim filed within six months from the date ofdelivery. 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 ofArt. 7065(b), Subsection (d), Sec. 13, to issue his warrant refunding taxes onmotor fuel unless the motor fuel is used and the claim filed within six months from the date ofdelivery tothe 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