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July 19, 1957

Hon. Rdbert 9. Calvert OpinionNo. WW-199 Comptrollerof Public Account.6 Capitol Station Re: Austin, Texas Motor Fuel Tax Refund

De&r Mr. Calvert:

You have reque8ted an opinion a8 M whether you are authorizedto pay a Motor FuIl Tax Refund. You refer to Article subdivlei6n (g Verhon’s Civil Btstutee,Mb particularly

of Seatlon 13 of #ald~Artiole. aa laet amendedby Acta, 1951, 52nd %egisiature,iage 695, Chapter 402, SectionXXII, Secsion 4.

You eet forth the pertinent facts aa follovis:
“A rancher oneratesa 200’000 aCre ranch irj

King Courit$,

Texas which is b$ected North to S6uth by State Hi way No. 83, and Bast to Weet by State H ghway si” NO. 82, on which truoka,plctipS and power wagons are umed for all general ranch purposes. A power wagon is & truck upon which ie lnatalleda separate unit ured for liftingpurpoeee. “In the CourBe of, the rcinch w&k these vehiclel),

which are all licensed for highway uee by the State Highway Departmenttravel doily or frequently over the bleectlnghlP;hwaJrs n moving such vehiglea from one i, divir on bf the ranch to another. They trrvel from short dietancee up to and ab far &s 22 inllesl

per trip between entrance# to the ranch divisions. The Cotiptroller ha8 declined to pay a tax refund claim filed by said rancherbecauee ;norecord ~88 kept of the travel over the bigecting state highways and the refundmotor fuel used in euch travelwas not deducted fPom the claim.Ron. Robert S. Calvert,page 2 (WW-199)

"The rancher contends that such vehicles are used entirelyon the ranch (off the highway) except for Incidentaltravel necessary to move the vehicles from one ranch property to another, and that such highway travel is so Incidentalto the basic ranch or non-highway use of such vehicles that it does not constitute a taxableuse within the intent of the Legislature.

8,

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II

. . . "Will you please advisewhether the Comptroller

may, under the existing law, approve a claim for tax refund In which the claimanthas failed to deductmotor fuel used on the highway In incidentaltravel from one division of his ranch to another?" It is our opinion,based on these facts, that you properlydeclined to pay the tax refund claim for the reason that no record was kept of the travel over the public highway, and the refundmotor fuel charged to travel over the public highwaywas not deducted from the claim.

Subdivision (f) of said Section 13 of Article 7065b, as last amendedby the same Act of the 52nd Legislature which last amended subdivision (g) of this Article is also applicable.

The first paragraphof subdivision (g) of Section 13 of said Article 7065b, as last amended In 1951, reads as follows:
I'(g) No tax refund shall be paid on motor fuel used in automobiles, trucks,pickups> Jeeps, stationwagons, buses, or similar motor vehicles designedprimarily for highway travel,which travel both on and off the highway except as hereinafter provided. (a) If any such motor vehiclesare used entirely for non-highway

purposes exceptwhen propelled over the public highway to obtain repairs, oil changes, or similarmechanicalor maintenance services,or when propelledover the public highway for other incidental purposes, or (b) if any such motor vehicles are operated exclusivelyduring the period covered in any. .

Hon. Robert S. Calvert,page 3 (WW-199)

refund claim over prescribedcourses Wnf3

. ^. _. . . . . . betweenrixea terminalsor cases, in wnlcn such vehicles travel the same mileage on the highway on each trip and the same mile- %ae off the hiahwav on each such trio.

While the syntax of this paragraphmight be altered for more ready comprehension, still It Is evident that the portion of this paragraphbeginningwith the first under;;;;lng qualifiesall the precedingportion of this paragraph. portion ofxe law means just what It says: That a "corn lete record of each trip traveledover an art of th ub&- wa&' must be kept, includingall tri;s'forincidizal purposes. 8 record furnishesthe basis of the deduction for motor fuel -on the public highway In the claim for motor fuel tax refund.

The third paragraphof said subdivision (g) prescribes definiteand exact methods by which

"A claimantmay account for any part of refund motor fuel used upon the public highway, and not eligible for tax refund,.

. .'I These methods are clearly describedand just as clearly require exact recordedmeasurementof gasoline or mileage charged to use upon the public highway and deducted from the refund motor fuel coveredby any invoice of exemption in the claim.

The fourth and last paragraphof said subdivision (g) reads as follows:

"The recordsprescribedhereinabove shall be kept for a period of six (6) months from the date any claim, to which such records are pertinent, is filed in the Comptroller's office, and no tax refund shall ever be paid in whole or Iin

part when a part of the motorHon. Robert S. Calvert,page 4 (WW-199)

fuel purchasedon any invoice of exemption contained in the claim has been used to operate a motor vehicle, tractor,or other conveyanceof any kind or description upon any public highway~for which a tax refund is not authorizedherein, unless the claimanthas kept for the time and in the manner herein provided a completerecord of all such uses for which no tax refund 1s authorized.", (Underscoring added) This fourth paragraphof s&d subdivision (g), like the first paragraph thereof quoted %bove, is clear and unambiguous in requiringa completerecord of every trip traveled over any part of the public highway, irrespective of the purpose of the trip.

The second sentenceof the secondparagraph of aubdivision (f) of said Article 7065b, Section 13, is In harmonv with the various provisionsof subdivision (g)-of that Article wherein it states:

"The claim for tax refund shall Include R statementthat the Informationshown in each duplicate invoice of exemptionattached to the tax refund claim is true and,correct, and that deductionshave been made from the tax refund claim for all motor fuel used on the public highway of Texas %i@ for %ll motor fuel used,or otherwisedlsposed~of~ in any manner ln'which:%'t&c refund ls:not authorized herein:" :(Underscorlng%dded) Subdivision-"(a)

of said Section 13, of said Article 7065b requiresno IaterpretatJon and reads as follows: "In all refund claims filbh"underthis section the ~burden shall be on the Claimant to furnish sufficientand satisfactory proof to the Comptrollerof the claimant18compliance with all provisionsof this Article; otherwise, the refund claim shall be denied." This opinion does not considernor relate to any type of tractorusage upon a public highway, In that your Inquiry covers only trucks,pick-ups and power wagons. (Paragraph2 of the quotationfrom yourinquiry)._ .

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Hon. Robert S. Calvert,page 5 (WW-199)

SUMMARY

When no record Is kept of "refundmotor fuel" used by trucks,pick-ups,or Bower wagons while travelingupon a pub1j.c highway between divisionsof a ranch, and such motor fuel is not deducted from the claim, as requiredunder the various Sectionsof Article 7065b, no tax refund on any part of such refund motor fuel purchased %nd~ coveredby a particular involc~ of exemptionand used off of a public highway ie authorized.
Yours very truly,
WILL WILSON Attorneyoeneral

BY W. E. Allen Assistant WBA:gs APPROVED: OPINION COMMITTEE H. Grady Chandler,Chairman Mary Kate Wall 'I Howard Mays W. R. Hemphill Wayland C. Rivers, Jr.