Hon. Geo. H

. Sheppard Opinion No. 

### O-7341

Comptroller of Public Kccounts Re: Approval by Comptroller of aclaim riustin, Texas for refund of tax paid onmotor fuel thereafter sold by the claimant ex tax to aircraft owners whenthe claimant
can makeoath that the motor fuel was Dear Sir: actually used for non-highway purposes?

In your letter of August 

### 5, 1946, you have requested
anopinion from this office relative to the above subject and in your letter you have presented two specific questions. The first of these asks whether the Comptroller can “legally approve aclaim for refund of tax paid onmotor fuel thereafter sold by the claimant ex tax to aircraft owners when the claimant can make oath that the motor fuel was actually used for non-highway purposes.” The second question is conditioned on anaffirmative
answer to the first. Specifically, two cases have occasioned your request andthe paragraphs of your letter presenting them
are quoted:

“In the first case, an airport operator has purchased large quantities of av,iation fuel from alicensed refund dealer in Texas obtaining aninvoice of exemption for the purpose of filing claim for refund of the tax paid byhim
as soon as the motor fuel has been used for non-highway purposes. The operator, however, did not use all of the fuel in his ownaircraft but he sold alarge part of the fuel to various other ai-craft owners whofueled their planes at his field. In this instance the airport operator contends that he did not collect the tax from the purchasers as he resold the fuel although the records showthat the profit he added to the original cost of the fuel was more than enough to cover twice the amount of the tax paid.

‘IIn the next case, amunicipal airport located on property owned byacity in Texas likewise claimed refund of tax paid onmotor fuel thereafter sold to various aircraft owners whostored their planes in the airport hangXL-S. In this instance the operator of the airport collected a$Uorage fee from the airplane owners but the fuel sold to such owners was sold at actual cost after deducting the 46tax. In other words, aviation fuel that cost 

### 18q?per gallon including tax was sold at 146 agallon (Hypothetical figures) to said aircraft owners andtheHon. Geo. H. Sheppard, page 2 (O-.7341)

municipal alrport claimed the refund instead of the actual users”

Themotor fuel tax 

### arefund ofwhich is here in *estion, is imposed by Article $065b, Section 

### 2a, V.A.C.S. which provides in part as follows:

“There shall be and is hereby levied andimposed (except as hereinafter provided) upon the first sale, distribution, or .ISF:of motor fuel in this State an occupation or excise tax c,: Four (4) cents per gallon
or fractional part thereof so sold, distributed, or used in this State, * **

I1** * In each subsequent sale or distribution of motor fuel uponwhich the tax of r’o~r (4) cents per gallon has been collected, the said tax shall be added to the selling price Iso tha.t such tax is ultimately paid by the person using or consuming said motor fuel for the purpose of generating power for the propulsion of anymotor vehicle upon the public highways of this State,” Clearly, under the term of this statute, the tax imposed thereby is to be passed onto subsequent purchasers andis to be paid ultimately by the user or consumer. It follows that anyexemption from the tax should inure to the benefit of the user or consumer andthat anyrefund thereof must relate directly to the
use or consumption of the motor fuel onwhich the tax has been paid. This is recognized in the provisions for arefund of this tax following in Section 

### 13 of this same kticle 7065b. It is not deemed necessary to quote at length from, nor analyze in detail, all of the provisions of this section. Suffice it to say that the intendment of the entire section andof each of its subsections is that the claim for arefund of motor fuel taxes shall be made only by the user or consumers and that no refund shall be madeunless such user or consumer purchased the motor fuel from 

### a

“refund dealer” as provided0

This section 

### 13 providing for refunds operates as anexemption to motor fuel taxes generally imposed. Assuch it should be strictly construed andthe burden is onthe one claiming an exemption from taxes to bring himself clearly within the statute. (See Methodist Church v. City of San Antonio, 201 S.W. 669). Exemption from taxation is never favored and in construing laws exempting anycitizen or class of property, all doubts are resolved against the exemption. (See Santa Rosa Infirmary v. City of San Antonio, 259 S.W. 926)oHon. Gee. H. Sheppard, page 

### 3 (O-7341)

The section is an integrated statute devoted mostly to procedures for obtaining refunds of the kind here in question. By its terms (see subsection a) the refunds authorized are to be made “in the manner and subject to the limitations described herein.” Theprocedures prescribed are of the essense of the statute and acompliance therewith is acondition precedent to the right to the refunds that it authorizes. d“refund dealer” is defined and (in subsection b) the sale of motor fuel onwhich arefund of the tax maybe authorized by anyone without arefund dealer’s license is prohibited andmadeamisdemeanor. Throughout the statute it is manifest that aclaim for arefund is to bemadeby, and any refund paid thereon is to be paid to, the actual u.ser or consumer.
There is nostandard provided nor anyreason found for permitting any exception to the above requirements. This is supported by several considerations. First, the applicable rules of construction above mentioned require a strict compliance with the procedures prescribed in the statute. Second, under the principle of departmental construction, the long continued policy of the Comptroller’s Department in requiring airports andboatdocks desiring to sell motor fuel to private owners, to secure arefund dealer’s license would resolve any possible doubt as to the instant cases. kndthird, there is the cogent reason that any exception could be extended to other sellers in the course of distribution or enlarged upon through the sale of increased quantities until the very purpose of the statute would be defeated.

The foregoing considered, it is the opinion of this office that the Comptroller maynot le
arefund of motor fuel taxes Iunless (1‘ially approve aclaim for the claimant was the actual user or consumer of the motor fuel and (2) the claimant purchased such motor fuel directly from alicensed refund dealer. This negative answer to your first question makes ananswer to the second unnecessary. It maybe noted that the price atwhich the fuel is sold does not affect the procedure for claiming arefund. kccordingly, you are advised that in the cases presented the claims filed by persons other than the user or consumer may not be approved.

APPROVED

SEP11, 

### 1946 Yours very truly /s/ Grover Sellers ATTORNEY GENERAL

OFTEXAS ATTORNEY

GENERAL

OF BY /s/ Jackson Littleton TEXAS Jackson Littleton, Assistant APPROVED:OPINIONCOMMITTEE BY: BWB,CHAIRMAN JL:JMc:wb