Hon. Robert S. Calvert OPINIONNO. WW-437

Comptroller of Public Accounts Capitol Station Re: Whether Comptroller Austin, Texas, may permlt correction of Inaccurateclaim for refund of motor fuel taxes Dear Mr. Calvert: subsequentt6 Its filing.

We ,q&te the followlng,excerptfromyour letter of April 29, '1958,

requesting our opinion on the above captioned matter:

"Theclaimant filed a claim, duly sworn to, for refund of tax paid on 8,465 gallons of motor fuel shown In the claim form to have been used entirely off the roads and highways, refundable, and In the space on the claim formheaded, 'Qallons Used on Roads and Highways,No Refund', the word 'none'had been typ:d In. "Investigationof the claim In the field revealed that a considerable part of saidmotor fuel ChadbeerI

used taxable In trucks,pickups and a Jeep on the highways.

"Theclaimant stated that the claim had been prepared by a new bookkeeperaided by the local Farm Bureau Office, and that he signed the claim without noticing that the taxablehighway fuel had not been deducted. All previous claims filed
over the years showed carefulpreparation and large deductions for taxablehighway use. Obviously, the claim was filed withoutwllful Intent to obtain tax refund to which he was not entitled."

The Comptroller's form 7065-11 for farmers and ranchers making an affidavit for claim of refund also contains the following question: "Haveyou used any fuel covered by Invoice of exemption on the roads and highways In any vehicle (,lncluding tractorshauling products, or doing c:stom work)?' To this question the applicant answered "yes. Thus the claim was Inconsistenton Its face. The Invoices of exemptionwhich were attached to the application andHon. Robert S. Calvert,page 2 (WW-437)

which were made out at the time the gas was used correctly stated the amount and purposes for which It was used.

You ask whether the entire claim has become forfeited
or whether the Comptrollermay allow a revlslon of the application so as to permit recovery of the amount of refund to which applicantwas actually entitled.

Article 7065b-13,Vernon's Civil Statutes,authorizes
a refund of motor fuel taxes In certain Instances. We quote. the followingpertinentprovisions of this article:

"(a) In all refund claims filedunder this section the burden shall be on the claimant to furnish suffl- ,,clentand satisfactoryproof to the Comptroller.ofthe clalmant~s compliancewith all provisions of this Article; otherwise, the refund claim shall be denied.
"(b) Any person (exceptas hereinafterprovided), who shalluse motor fuel for the purpose of operating
or propelling any~statlonarygasoline engine,motorboat, aircraft, or tractor used for agriculturalpurposes, or for any other purpose except In a motor vehicle operated or Intended to be operatedupon the public highways of this State, and who shallhave'pald the tax Imposedupon saidmotor fuelby this Article, either directly or Indirectly, shall, ivhensuchperson has fully compliedwith all provisions of this Article and the rules and regulationspromulgatedby the Ce tax paid by him less one and one-halfper cent (l&6)allowed distributors.wholesalers and jobbers,and retailers under the provisions of Section 2 (b)of this Article

. . .I,

. . . "(f) Any person entitled to file claim for tax refund under the terms of this Article shall file such claimwith the Comptrolleron a formprescribed by the Comptrollerwithin six (6)months from the date the motor fuel was delivered to him, or from the date,the motor fuel was lost, exported or sold to the United States Government, and no refund of tax shall ever be made where it~appearsfrom the invoice of exemption,
or from ,theaffidavits or other evidence submitted,, that the sale or delivery of the motor fuelwas made
more than six (b)months prior to the date.the refund claim was actually received In the Comptroller'soffice.Ron. Robert S. Caivert,page 3, (,>X-437)

The refund.clalm,with all dupXcate Invoices of exemption required by law to be Issuedwith the sale of refundmotor fuel Includedas a part of said claim, shall be verified by affidavit of the claimant, or a duiy authorizedagent of the clalmant, and shall show the quantity of refund motor fuel acquired and on hand at the beginningand closing dates of the period ccvered in the refund claim filed.

"It shall be the duty of every person claiming tax refund to verify the 'contents of the claim filed and any such person who shall file claim for tax refund on any motor fuelwhich has been used to propel
a motor vehicle, tractor or other conveyanceupon the publ:c highway of Texas for any purpose forwhich a tax refund is not akthor:zedherein, or who shail file anv duollcate invoice of exemntion In a claim for tax refund on which any date, ‘figure or other material Informationhas been falslfled or aitered after said duplicate Invoice OF exemptionhas been duly issued by the refund dealer and delivered to the claimant, shall forfeithis right to the entire amount of the refund clainafiled." (Emphasissupplied throughout.)

We think that Article 7065b-13 isplain and unambiguous. Under Its specific terms the claimanthas the burden of showing compliancewith all of the provisions of the article and the rules and regulationspromulgatedby the Comptroller. Such full compliance is requisite to reimbursement .ofthe tax. The claim for refund In this case did not fuliy comply, but,
on the contrary, speclficaliy failed t0 exclude the amount Of gas which had been used in operatingmotor vehiclesupon the public highways of this State.Hon.

that Robert S. Calvert,page 4, (W-437)

The statute speaks in clearly mandatory terms In stating ". --_ . -~ - .

ciaim for tax

In Cpini.on

No. v-1487 this office sdvl.sed you that the tax refunds authorizedby the Motor Fuel ?;ax:~aw are in the nature of exemptions or exceptions and must be &trlctly construed. The statutoryproceduremustbe strlct;y complied with in order to entitle the cfaims,nttc the right granted h?m by the statute.

The results which ensue in thl.s case are no harsiier then those which ensue In many cases where a taxpayermistakenly
or unintentionally fails to comply wlr,hthe provls:ons of t,ne law. Section ff) of Artl.c?e *(065b-13

expresslyprovides that no refund of tax shail ever be mad? in those cases in wnich the sale or delivery of the motor fuei was made more than sixmonths prior to the date the refund claim was rec~eived In the Comptroller'soffice. No one would question the mandatory nature of this provision,yet a taxpayer tight aa lnnocently and mistakenly fall to filehis claim for reftlnd wlthln the prescribed six months'period as he might mistake the number of gallons of motor fuei on which the amount of his refund should be based. As a practical matter, the taxpayer rather t.han

the-Comptroliermust shoulder the burden of ascertaining the correctness of his claim, or the burdens of enforcing the Motor FuelTax law would be immeasurably Increased.

in any event, regardlessof our vler; as to the deslrabillty or undesirabilityof the result we have reached in this case, it has been stated tha~tIt Is the proper functionof a court to enforce the law as made by the Legisiature rather than to announcewhat the law should be or to speculateas to why it Is as It Is. No court is authorized under any pretext to nullify, repeal or rewritean unambiguous act to conform to its own notions of justice or wisdom. 39 Tex. Jur. 163, 164, Statutes, Sec. 89. Certainly this office could not do that which is beyond the authority of a court of law. You are thereforeadvised that the claimant in the case you have submitted for our considerationhas forfeitedhis right to'the entire amount of'the claimed refund.Hon. Robert S. Calvert,page 5, (:/;5;-:.!>7>

SUMMARY

Where claim for refund of motor fuel taxes includeda claim for refund on motor fuel which had been used for a purpose for which a tax refund was not authorized, claimant forfeitedhis right to the entire amount of the.

refund claim filed.

Very trulyyours

WILL WILSON AttorneyGeneral of Texas

APPROVED:

OPINIONCOMMITTEE:
George P. Blackburn, Chairman

HowardNays Leonard Passmore

REVIRWEDPORTHE ATTORNRYGENERAL

BY: W. V. Geppert