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I:- 

. ~C. ‘: *...i... 

OFFICE OF THE AlTORNEY GENERAL OF TEXAS 

: 

I 

AUSTIN 

aRQ”LR SLLLL~S 

Honorable Geo. Ii. Sheppard 

Comptroller 0r Public AOoount8 

State of Texas 

iruatin, Texas 

Dear Sir: Opinion No. c-k.6 

Rer Tirms allow 

claim for reiund 

OW gallons of gasoline 

llaensed dealer,:and obtalm 

t the time 05 Usll~ery. 

of dell~sry, under date of 

r0queeting r0itma or tax on 

P the Comptroller ieaues warrant refunding i 

gaZlons uPed. 

OThe question now arises as to when limitation run@ 

on the r&and or the tax on the remaining 500 gallons. 

wb4mtion a or .s,eotlon 13 or the'ldotor Fuel A6t . 

read8 in part at3 follows: 3.. “, 
405 , 

.^. 

uonorable Ceo. 3. Shep.jard, page 2 

nV:!:hon e olaimant purchases or aoqukres for use 

motor fuel upon which a refund, of the tax lnay be due, 

he shall within six (61 months from the date or delivery 

o.f the motor fuel upon whloh a refund is olaimed, and not 

thereafter, file with the Comptroller an affidavit upon 

suoh form as may be presoribed by the Comptroller. . . 

ncNo refund shall be made where motor fuel is usea 

later than six (6) months from date of delivery or appropriatlon, and no refund shall ever be made where it appears 

Won the invoice, or from the afS&avlt, or other evoidenoe .~ 

submitted, that the sale or delivery was made more than 

six (6) months prior to the date of filing of the applloation for refund. The date of filing shall be the day suoh 

olala Is actually reoelved ln the .Comptraller*s offloe. 

In addition to other penalties presoribea In this Artiole, 

It is herein provided that a felony oonvlotion for a violation of any provision of this Seotion of eaid Articls shall 

automatioallp forfeit the right of said oonvioted person to 

sell motor fuel for refund purposes, and shall forfeit the 

right or said oonvloted person to rile a olaim and obtain a 

refund ror a period of one (1) year from the date of said 

oonviotion.9 

"You all1 note from the above quoted Seotion that it 

provides no reiund shall be mado where the motor fuel is used 

;;iy than six months fron the date of dsliVtprs or aPProDrlaA 

*Must the olalmant use the 500 gallons and file hie 

olalm with the Cowtroller by July 1, 1944, whloh Is 8lx 

months frsm&e, date of delivery, or does he have until 

IWvember 1, 19l4, 5.r whloh to use the motor fuel and file 

his alaim, which later date is six months from the date he 

filed his former olaln? 

Vhen a olalmant has riled his claim in due order and 

time, showing ti qucmttty or motor .fusl on hand and unused in 

such olalm, does the phxase 'or appropriation* extend the 

period ol linitatlon on the quontlty, on hand for six months 

fro,x data suoh olaim is filed with the Comptroller?W 

In this oonneotion it is neoessary to oonstrue thevarious subaeotions of Geotion 13(d), Artiole 7065(b), Vernon’s 

hnotatea Civil Statutes, in order to olassify the persons entitled 

to a refund or the motor fuel tax thereunder. 
406 

i:,,, ao?lorable Geo. II. Sheppard, page 3 

The term 9efuud dealer" Is defined by the Artiole 

aa rollowe 8 

\ “The tern *refund dealer* wherever used in thla 

Artlole shall mean any dealer, distributor, or other 

person who engages in the sell1 

aJ)roDrlataB for his Own use ~o",'s~;~r,,'u2t:; a El 

on which a refund of the tax paid on suoh mDtor fuel lB 

authorized by this Artiole.n 

SubBeOtlon (i&j or Seotlon 13(d) of the Artt01e defines 

ths two olasses of usere entitled to tax refunds as follcmsr 

“anj- person who wrohasee motor rue1 In the State or 

Texa8, ati tiny distributor who awroDriates motor rue1 for 

use. . . shall be refunded the amount 0r euoh taxse . . .v 

Subseotlon (b) of Se&ion 1.3(d) of the Artlole provides for the lssuanoe of a refund UealQr~s lloenee to aell 

ruoh motor fuel, ana is In part as folltxws: 

9?0 refund of the tax shall be granted to any permm, 

01 numt 

iii&if 

Era, oorporation, or otherwise, uuless suoh 

el has been ohasea rr0m or usea bs a lloensed 

refund dealer as pr is Art101e: . . ." 

Subseotion (0) or SectlOn 13(d) or the Artiole~:prcnldrn 

Sor involoes of exemption to *be demanded by the purohaaer or 

for refund purposss, and upon eaoh 

or upon saofi sromiation r0r use 

of. tax my be olaimed, an invoioe 

Of exemption shall be issued ahowlng the date of Buoh dellver~, 

Or of snob apDroprlation for use . . .v 

Subsection (a) of Seotlon 13(d) of the Artlole provides 

for the filing %na payment of Olalms for refund; 

-(aI Zhen a olalmant purchases or acaulres for use 

motor Cue1 upon which a refund of the tax may be due, he 

shall within six (6) months from the 

motor fuel upon which a refund is 01 

rile with the Coaptra3J.er an arfidav 

presarlbed by the ComptrolSer. S l n 
. . 

Honorable Gee. K. Shepwrd, page i+ 

“No refund shall be made when motor fuel la used ---- 

later thas sir (6) months from the date OS Uellve; F9or 

appropriatioQ and no refund shall ever be .-de when it 

appears from the luvoioe, or fro= the afSi&mlts, or other 

eVldencs submitted, that the sale or 

more than six (6) months prick the 

the amlloatlon SOT r8Sund.W (3mphasss ours) 

Brom the foregoing subsootiom it is apparent that 

the Legislature intended to and did distinguish between a 

prtson who purohases motor fuel for us%. and a distributor who 

rotor Suol for use. !Phroughout these subaeo t ione 

the word8 *purohasi3w, 

applied 

Tdell* or *aale” and ndelivew 

is to a person who urohasos motor fuel from a lloenaed 

dealer upon whl.oh a clak!i tax ~ofund may be filed, while the 

ueage oS the word8 *appropriation” or *Appropriate for useW and 

*AOQU~ZW* or *aoquisition~ is applied to a dlstrib tor who 

ro riate@ or sets aside e portion of motor 

;- 

---&hxom hie 

to be used r0r the speoifle purposes set rorth in 

the Artlole entltllng him to a rel’und OS the tax. 

prior to July 1, 1944. 

In mswer to ths eeoonb question, since the olaiment 

wae~ a purchaeer Srom a lloenaed dealer and not a distribute who 

~pProJtr%at rd suoh motor Sue1 the phrase “or appropr ewouia 8 

not extend the period OS limitation OS US8 or filing hi8 olaim 

for refund within 83.x (6) aonthe Srom the dote o? dellvem of 

8Uah motor fuel to him. 

Trusting that the foregoing Sully snswers your questlone, 

we are 

Yours very truly 

I