f?RICE

DASIEL .\,mtSEY GESERAL April 28, 1947

Hon. GeorgeH. Sheppard Comptroller of Public.Acccunts opinion No. v-170 Austin, Texas BE: The refund of motor fu8l tax to one converting naphtha to light-. er fluid for mark-

.,eting in small .contaQers. Dear Mr. Sheppard:

In your letter ofApril 9, 1947,.gcu request the opinion of this departmentupon the application ofthe Gibson Products Company, Seagoville, Texas, for refund .ofmotor fuel taxespaid by-said concernupon naptha (ooming olearlpwithin the d&i.- nition of motor fuel) which it purchased and put up in ssall containers for sala as cigaretteand c,igar~. lighter fluid.

seot:od~

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Artiole 7065b,provides as follows: .

"Any person who puro,hases motor fuel in the State of Texas, and any distributorwho appropriate8motor fuel for use when suchmotor fuel purchased bg such person or used by such distributor ior operating orpropel- .' .~. lingany stationary gas engine or tractor used ior .agricultT+ral purposes, motor boats, airoraft, or for any purpose other than use in amotor vehicle

. operated or intended tobe operated in whole or-in part upon any of the public highways, roads, or streets-of the State of Texas, onwhich motor fuel tax has been paid, either directly or indirectly, shall be refunded the amount.of such taxes so paid, b' the distribqtor, exclusive of the one 91)per cent deduction allowed distributorsupon the first sale, distribution or use of said. .

Hon. GeorgeH. Sheppard - Page 2 (V-170)

motor fuel, for Collectingand remitting the tax and for evaporation and ;!. other losses in the manner and subject :.,
to the limitations and conditionsde- ~; scribedherein. Provided, however, thatno greater emount shallbe refund- ,i.:,:, ed than has been paid'into.theTreasury 'yj
on anymotor fuel. The tax actually paid by any distributor orperson shall $$ be refunded-'as:pxovided herein~01%

fac- : tor fuel not subject to the tax.* kletilybefore the Gibson Products Company 'isentitled t0.a refund, it must establish its right th8r8tOYund8r the terms of said statute. The only basis.upon~which the~'Gibson Products Company can qualify for a refund.ie that portion of the statute reading a6 follows: ." .,

n than us: :. or for any purpos8 oth8r

in amotor vehicle Op8Tat8d'or int8eded to b8 Op8I&t8d in whole.or in '._' '. paasupoe any of the public highways,

. Ed

or streets of the Stat8 Of.Texas, .' on which motor rue1 tax'haa been paid, % either directly or 'indireotly..:.,."

: ' '. Concededly, the us8 to which this concern' appropriates the naphtha, namely,,conv8rting it into ,!. cigarette and cigak lighter fluid sold'in smallquan- i titi8S iS a use for SOm8 other pUFpOS8 other th8nus8 in a motorvehicle operated or intended to be operated" :' inwhole or inpart on any of-the publichighways, &a., Of the State.

We are of the opiqion that the Gibson Products Company is in truth the consumer aS COnt8mpk&8d, under the statute rather than the purchaser of themll quantitiesof cigarette and cigar lighter fluid oonverted by the oonsum8r into these.small quantiti8S and soldpromiscudusly to the ultimate users of this fluid. It follows that the Gibson ProduotS Company 18 entitled t0 a refund as a qualified COnSUU8r'fOr a.purpose other than use in a motor vehicle operated or intended tob8 operated inwhole or in part upon any of the'pubdiohighways, roads, eto.j'of this State.'. We assume, of course, that it has met the.'other prov%sions of'the statute in regard to timely filing application for refund and has made use of the naptha,'amotor fuel; within the..time prescribedby other provisions of the Statute.I. l

Hon. GeorgeH. Sheppard - Rage 3 (V-170)

If naphtha, a motor fuel, is converted into cigarette and cigar lighter fIuid and sold as the latter product, on8 who converts suchmotor iU81 into such US8 is under the terms ofArticle 7065b a contnmef and entitled~to a reiuad as a consumer 

### forus8 other than in amotor vehicle Operated or intended to be operated inwho18 or inpart upon any Of th8 publio highwaya, roads or streets of the State of Texas; provided, such con&uaer 08I1 qualify under the other provisionsof the act in timely Presentin&?a claim for' r8tUd and in the tiUl81y fuel thus converted.

LFL/lh/wb ' li use of themotor

Yours very truly ATTORNEYWiNERAL OFTRXAS

APPRUVED APRIL 28, 1947

2.L a!iiiLd ATTORNEY GRRERAL OF TBx4s