THE ATI-ORNEY GENERAL 

OF =XAS 

BVIJiL WILSON 

A1TGRNEY GENERAI. 

Ausnlv 11. TEXAS 

March 16, 1961 

Honorable Robert S. Calvert Opinion No. NW-1019 

Comptroller of Public Accounts 

Capitol Station Re: Whether the Comptroller is 

Austin, Texas precluded by Art. 10.14( 3), 

V.C.S., from refunding the 

tax paid on special fuels 

connecting to and feeding 

the carburetor of a motor 

vehicle when the flow line 

connecting said tank and 

carburetor is temporarily 

cut off by valve pending 

use of such special fuels 

to operate stationary 

Dear Mr. Calvert: pumping unit 9. 

You have asked this department for an opinion on the question hereinafter set forth and have given US a stated set of facts in 

connection therewith which are as follows: 

“The Western Oil Transportation Company, 

Inc., Midland, Texas, operates fifty or more 

truck tractors hauling crude -oil and other 

petroleum liquids in cargo tanks mounted on 

semi-trailers, which trucks are equipped with 

motor-powered units used to pump the oil into 

and from the cargo tanks. The pumping units 

are propelled by the same motor which propels 

the trucks in daily travel over the public 

roads and highways in going to and from 

storages and oil well locations or other outlets. 

“Each truck is equipped with two separate 

fuel tanks both of which are connected to and 

feed the carburetor which supplies special 

fuels to the truck’s motor whic,h generates 

power for the propulsion of the truck on the 

highway and also the power which operates the 

pumping units to load and unload the cargo 

tanks . The pumping units do not operate while 

the truck is moving over the highway. Each of 
Honorable Robert S. Calvert, Page 2 (Opinion No. WW-1019) 

the two fuel supply tanks is equipped with a 

cutoff valve, and the claimant states that the 

fuel from one tank is used to propel the vehicle 

over the highway and fuel from the other tank 

is used to operate the motor-powered pumping 

unit. 

"This company is classified by Article 

10.11-(l) as a non-bonded user who is required 

to pay the tax to the supplier on all special 

fuels purchased." 

Your question is as follows: 

"1. Is the Comptroller precluded by 

Article 10.14(3), above quoted, from refunding the tax paid on special fuels 

delivered by a licensed user into a separate 

fuel tank connected to and feeding the carburetor of a motor vehicle when the flow 

line connecting said tank and carburetor is 

temporarily cut off by valve pending use of 

such special fuels to operate stationary 

pumping units?" 

Chapter 10, Title 122A, V.C.S., provides for the tax on 

special fuels. 

Article 10.14, Chapter 10, Title 122A, V.C.S., provides 

for refunds and Sections 1, 2 and 3 of such Article 10.14 read as 

follows: 

"(1) Except as otherwise provided by 

Article 10.15 of this Chapter, any licensed 

dealer who shall have paid the tax imposed 

by this Chapter upon any liquefied gas or 

distillate fuel which has been used or sold 

for use by such dealer for any purpose other 

than propelling a motor vehicle upon the 

public highways of this State, or which has 

been sold to the Unlted States Government for 

the exclusive use of said government, and any 

licensed user who shall have paid said tax 

upon any liquefied gas or distillate fuel 

which has been used by such user for any purpose other than propelling a motor vehicle 

upon said public highways, may file claim 

for a refund of the tax or taxes so paid, 
r r 

Honorable Robert S. Calvert, Page 3 (Opinion No, WW-1019) 

less one percent (1%) allowed suppliers for 

the expense of collecting and reporting such 

taxes to this State. Such ,claims shall be 

filed with the Comptroller on forms prescribed 

by the Comptroller and shall show the date of 

filing and ~the period covered in the claim, 

the gallons of~liquefied gas and the gallons 

of distillate fuel sold or used for purposes 

subjects to taxi refund, and shall show such 

other facts and information as the Comptroller 

may by rule and regulation require. Every such 

claim shall be supported by an invoice or 

invoices issued by the claimant, as hereinafter 

provided, and shall be verified by affidavit 

of the claimant and filed in the office of the 

Comptroller within six (6) months from the date 

the special fuels were invoiced or required to 

be invoiced for sale or use, and no claim shall 

,be made by the’claimant or approved by the 

Comptroller when the sale of such special fuels 

or the appropriation for use occurs more than 

six (6) months prior to the date the claim is 

filed. 

“(2) When liquefied gas or distillate fuel 

is sold~by a deal~er or is appropriated for use 

bye a user for any purposes for which a refund 

of the tax paid on said products may be claimed 

as provided herein, such dealer or user shall, 

at the time of each sale or appropriation for use 

and not thereafter, make out a serially numbered 

invoice in not less than duplicate counterparts 

with the name and address of the dealer or user 

printed thereon which shall show the date of the 

sale or appropriation for use, the quantities 

of liquefied, gas and/or distillate fuel sold 

or appropriated for use, the purposes for which 

said products will be used, as declared by the 

purchaser or user, and such other information as 

the Comptroller may require. The invoice shall 

be signed by the recipient of any such special 

fuels purchased from a dealer. One ccunterpart 

of each invoice shall be kept by, the dealer or 

user for a period of two (2) years open to the 

inspection of the Comptroller ‘or hisauthorized 

represenbatives, and the other counterpart shall 

be fil,ed as a part of the ,claim for tax refund 

as above provided. 
Honorable Robert S. Calvert, Page 4 (Opinion No. WW-1019) 

I’ (3) Any dealer or user who shall 

file claim for refund of the tax on 

any special fuel which has been delivered into the fuel supply tank of a 

motor vehicle, or who shall file any 

invoice in a claim for tax refund upon 

which any date, figure, signature, or 

other material information is false or 

incorrect, shall forfeit his right to 

the entire amount of the refund claim 

‘filed.” 

Attorney General’s Opinion No. o-2381, written by this 

department under date of July 25, 1940, covers several questions 

in connection with refunds of taxes on motor fuels. Some of the 

situations covered in this opinion are as follows: 

“1. Oil field equipment ia used which 

Is a licensed or registered motor vehicle 

(truck). On this truck is mounted a 

drilling rig. The truck motor is used for 

tf;;mp;fi;Eef; p$;aepropelling the vehicle 

which may be on 

public roads or highways, private property, 

such as leases, or both; (b) operating the 

equipment mounted on the truck strictly 

as a stationary engine. This is accomplished 

through a power take-off which separates the 

motor from the truck while so used. 

“2. This same procedure is used in 

connection with the following classes of 

work; namely, post-hole drilling for power 

lines, pumping oil into tank built on the 

same truck, feed-grinding mills, oil well 

cementing, oil well treating, fire engines 

for pumping water on fire after arrival.” 

,I . . . . 

“The following situation has never 

arisen; however, the facts are true, and 

as such must be given consideration. A 

farmer or rancher uses a registered truck; 

thereon he would have two fuel tanks and 

keep the fuel used for traveling on the 

roads or highways separate from that used 

while driving the same truck on his private 
Honorable Robert S. Calvert, Page 5 (Opinion No. WW-1019) 

property. This would require a switch 

from one fuel tank to the other at the 

proper time; and, furthermore, such trucks 

would not have a power take-off arrangement." 

Opinion No. o-2381 held that in these situations the 

refund should be allowed if the fuel was shown to have been 

used for operating and propelling the registered truck in 

question upon private property and not upon and along highways 

of this State. As indicated in the above opinion and the 

courts generally, where there is an ambiguity the question should 

be decided in favor of the taxpayer. 

Section 1 of Article 10.14 clearly provides for the 

refund of taxes paid on fuel which has been used or sold for 

use for any purpose other than propelling a motor vehicle upon 

the public highways of this State or which has been sold to the 

United States Government for the exclusive use of said government. 

Section 3 of Article 10.14 reads, in part, as follows: 

"Any dealer or user who shall file 

claim for refund of the tax on any 

special fuel which has been delivered 

into the fuel supply tank of a motor 

vehicle. . . shall forfeit his right to 

the entire amount of the refund claim 

filed." 

It seems that there is some conflict between the 

wording of Section 1 and that of Section 3 above mentioned. 

However, the statutes throughout show the intention of the 

Legislature to levy a tax on motor fuels and special fuels 

used or sold for the purpose of propelling motor vehicles 

over the highways; only on that part of the fuel used for 

propelling such motor vehicles on the highways of this State. 

It is the further intent of the Legislature to refund the tax 

on fuels used for purposes other than that of propelling motor 

vehicles over the highways of this State, if it can be determined what amount of the fuel was used for the different purposes. 

It is our opinion that Section 3 has reference to 

fuels delivered into the fuel supply tank of a motor vehicle 

which travels part time on the highways and part time on private 

property with no way of determining the amount of fuel used on 

private property and the amount used on the highways. 
Honorable Robert S. Calvert, Page 6 (Opinion No. W-1019) 

However, in the fact situation given by y’ou the refund is authorized because in this specific situation the fuel 

is not delivered into the fuel tank which supplies fuel to the 

motor while traveling on the public highways. The fuel on which 

the refund is asked is delivered into a separate tank which is 

used only for operating the motor at a time when it is not propelling the vehicles over the public highways but is being used 

to propel a power take-off shaft to operate a stationary pump 

for loading or unloading the cargo of the truck. 

To demonstrate this more clearly -- if this were a 

separate motor mounted on the rear-end of this truck so that 

it could not be used for propelling the truck and the fuel was 

supplied from a separate tank as in this case clearly in our 

opinion the refund should be allowed for the fuel used in this 

separate motor. 

In the instant case the fuel is used out of one tank 

to supply the motor while it is being propelled over the public 

roads. Then the truck is parked on private property~ and the 

motor is disengaged from the gears which propel the truck, and 

is engaged in another gear which propels the power take-off 

shaft to the stationary pump, and the fuel is supplied from a 

different tank than that used to propel the motor vehicle over 

the roads. In effect, it becomes a completely separate unit 

from the motor vehicle which is used on the public roads. 

Based on the facts which you have submitted, it is 

the opinion of this department that the special fuel used to 

operate this motor for the use of loading or unloading the 

cargo of the truck, which fuel is being supplled from a tank 

which is used only while the truck is standing still and not 

being used on the public roads, is not subject to tax or the 

tax is subject to be refunded and Article 10.14(3), V.C.S., 

does not preclude you from refunding the tax paid on such 

special fuels. The Special Fuels Tax Act authorizes you to 

require such affidavits or other information which you deem 

necessary to establish that the facts in this situation are 

as have been stated. 

SUMMARY 

The Corn troller 

E (3), 

is not precluded ,by 

Article 10.1 V.C.S., from refunding 

the tax paid on special fuels delivered by a 

licensed user into a separate fuel tank 

connected to and feeding the carburetor of 
! 

Honorable Robert S. Calvert, Page 7 (Opinion No. WW-1019) 

a motor vehicle when the flow line connecting 

said tank and carburetor is temporarily cut off 

by a valve pending use of such special fuels 

to operate stationary pumping units. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

JHB:jp 

APPROVED: 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

J. Arthur Sandlin 

W. E. Allen 

Elmer McVey 

W. Ray Scruggs 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Morgan Nesbitt