HonorableRobert S. Calvert Opinion No. WW-1020

Comptrollerof Public Accounts Capitol Station Re: Whether the Comptroller Austin, Texas of,PublicAccountshas the c authority to promulgatea certain rule and regulation to be used In ascertaining the taxable gallons of Special i Fuels used for lncldental Dear Mr. Calvert: highway travel. You-have asked this Department for an opinion as L? whether a proposed rule and regulation,a copy of which Is hereto attached, can be legallypromulgatedby the Comptrollerunder authorityvested in him by Artlcle,10.21,Ch. 10, Title 122A, Vernon's Civil Statutes This proposed rule or regulationprovides for computingthe amount of special fuels used on the highway and off of the.highway in the same manner as is provided for motor fuels (gasoline)In Chapter 9, Title.l22A,Article 9.13, V.C.S. Article 10.08,V.C.S., provides a method for accounting for the tax on a mileage basis and reads as follows:

"In the event the tax herein imposed on special fuels Imported Into this State In the fuel supply tanks of motor vehicles and the tax on special fuels used In motor vehicles owned or operated by llcensed suppliers or other persons acting as users can be more accuratelydeterminedon~a mileage basis (that is by determiningand using the total number of miles traveled and the total gallons of fuel consumed), or In caue It IS more practicable to so determine the tax, the Comptroller Iti hereby authorizedto approve and adopt such basis." Article 10.14, V.C.S., Section 1, reads, In part, as follows: "(1) Except as otherwiseprovided by

Article 10.15 of this Chapter, any licensed dealer who shall have patithe tax Imposed. HonorableRobert S. Calvert,Page 2 Opinion No. WW-1020

by this Chapterupon.any liquefied gas or distillatefuel which has been used or sold for use by such dealer for any purpose other than propellinga motor vehicleupon the public highwaysof this State, or which has been sold to 'the United States Governmentfor the exclusive use of said government,and any licensed user who shall have paid said tax upon any liquefiedgas or distillatefuel which has been used by such user for any purpose other than propellinga motor v&lcle upon said public highways,may file claim for a rerun: of the tax or taxes so paid,

. . . . Section 1 of Article 10.14,V.C.S., further &=ovldes that claims for refund shall be filed with the Comptroll-... on forms prescribedby the Comptrollerand reads, In part, as follows: and shall show such other facts and'l&&mation as the Comptroller may by rule and regulationrequire.

. . . ' Article 10.21, Ch. 10, Title 122A,V.C.S., provides, In part, as follows:

"It Is herebymade the duty of the Comptrollerto collect,- supervise,and enforce the collectionof all taxes, penal'les, Interestand costs, due or that d[ ay become due under the provisions of this Chapter,and to that end the ComptrollerIs hereby vested with all of the power and authority conferredby this Chapter. The Comptroller shall also have the power and authority to promulgaterules and regulations,not Inconsistent

with this law or the Constltutlons of this State or the United States, for the enforcementof the provisionsof this Chapter and the collectionof all taxes, penalties, Interestand costs provided In this Chapter." Chapter 9 of Title 122A, V.C.S.,provides for taxes on motor fuels or gasoline as defined therein and Chapter 10 of Title 122A, V.C.S., provides for tax on special fuels, such as L.P. gas and diesel fuels which are defined In Chapter 10. Your request Is as to whether or not you are authorized to promulgatea rule or regulationallowing the same method of computing ,the

taxes due on spedal fuels as defined In<.
.
HonorableRobert S. Calvert,Page 3 Opinion No. WW-1020

Chapter 10, as Is authorized In the computingof taxes on gasoline as provided In Chapter 9 of Title 122A, V.C.S. Chapter 10 does not provide any method making It mandatory to compute the tax In any particularmanner but provides a method that may be used. Article 10.21, V.C.S., authorizes the Comptroller to make rules and regulationsfor the enforcement of the provisions of this Chapter and the collectionof all taxes, 'penalties, Interest and costs provided In this Chapter. Article I10.14, above set forth, also provides for the Comptrollermaking rules and regulationsIn connectionwith the computingof the taxes and refunds of special fuels.
It Is the opinion of this Department that the Comptrollerof Public Accounts has authorityunder Articles 10.14 and 10.21 of Chapter 10, Title 122A, V.C.S., to promulgate the -ule and regulation,a copy of which Is attached, for the compv. ~ng of taxes levied by Chapter 10.

SUMMARY

The Comptrollerof Public Accounts Is authorizedby Chapter 10, Title 122A, V.C.S, to promulgatea certain rule and regulation (copy attached) to be used In ascertainingthe taxable gallons of spe'clal

fuels used for Incidentalhighway travel.
Yours very truly,
WILL WILSON Attorney General of Texas

JHB:cm : APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman
W. Ray Scruggs Grundy Williams Joe Osborn Lawrence Hargrove
REVIEWED FOR THE ATTORNEY GENERAL By: Morgan Nesbltt