Hon. Geo. H . Sheppard Opinion No. O-7341 

Comptroller of Public 

Kccount s Re: Approval by Comptroller of a claim 

riust in, Texas for refund of tax paid on motor fuel 

thereafter sold by the claimant ex tax 

to aircraft owners when the claimant 

can make oath that the motor fuel was 

Dear Sir: actually used for non-highway purposes? 

In your letter of August 5, 1946, you have requested 

an opinion 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 

a claim for refund of tax paid on motor 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 an affirmative 

answer to the first. Specifically, two cases have occasioned 

your request and the paragraphs of your letter presenting them 

are quoted: 

“In the first case, an airport operator has purchased 

large quantities of av,iation fuel from a licensed refund 

dealer in Texas obtaining an invoice of exemption for the 

purpose of filing claim for refund of the tax paid by him 

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 own aircraft but he sold a large part of the 

fuel to various other ai-craft owners who fueled 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 

show that 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, a municipal airport located on 

property owned by a city in Texas likewise claimed refund 

of tax paid on motor fuel thereafter sold to various aircraft owners who stored 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 46 tax. In other words, aviation fuel that cost 

18q? per gallon including tax was sold at 146 a gallon 

(Hypothetical figures) to said aircraft owners and the 
Hon. Geo. H. Sheppard, page 2 (O-.7341) 

municipal alrport claimed the refund instead of 

the actual users” 

The motor fuel tax a refund of which 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 and imposed 

(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 upon which the tax of r’o~r (4) cents 

per gallon has been collected, the said tax shall be 

added to the selling price I so 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 any motor vehicle upon the public 

highways of this State,” 

Clearly, under the term of this statute, the tax imposed 

thereby is to be passed on to subsequent purchasers and is to be 

paid ultimately by the user or consumer. It follows that any exemption from the tax should inure to the benefit of the user or 

consumer and that any refund thereof must relate directly to the 

use or consumption of the motor fuel on which the tax has been 

paid. This is recognized in the provisions for a refund 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 and of each of its subsections is that the claim for a refund of motor fuel taxes shall 

be made only by the user or consumers and that no refund shall be 

made unless such user or consumer purchased the motor fuel from a 

“refund dealer” as provided0 

This section 13 providing for refunds operates as an exemption to motor fuel taxes generally imposed. As such it should 

be strictly construed and the burden is on the 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 any citizen or class of property, all doubts are resolved 

against the exemption. (See Santa Rosa Infirmary v. City of San 

Antonio, 259 S.W. 926) o 
Hon. 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.” The procedures prescribed are of the essense of the statute 

and a compliance therewith is a condition precedent to the right 

to the refunds that it authorizes. d “refund dealer” is defined 

and (in subsection b) the sale of motor fuel on which a refund of 

the tax may be authorized by anyone without a refund dealer’s 

license is prohibited and made a misdemeanor. Throughout the 

statute it is manifest that a claim for a refund is to be made by, 

and any refund paid thereon is to be paid to, the actual u.ser or 

consumer. 

There is no standard provided nor any reason 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 and boatdocks 

desiring to sell motor fuel to private owners, to secure a refund 

dealer’s license would resolve any possible doubt as to the instant cases. knd third, 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 may not le 

a refund of motor fuel taxes Iunless (1 ‘i 

ally approve a claim for 

the claimant was the actual user or consumer of the motor fuel and (2) the claimant 

purchased such motor fuel directly from a licensed refund dealer. 

This negative answer to your first question makes an answer to 

the second unnecessary. It may be noted that the price at which 

the fuel is sold does not affect the procedure for claiming a refund. 

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 SEP 11, 1946 Yours very truly 

/s/ Grover Sellers ATTORNEY GENERAL OF TEXAS 

ATTORNEY GENERAL OF BY /s/ Jackson Littleton 

TEXAS Jackson Littleton, Assistant 

APPROVED: OPINION COMMITTEE 

BY: BWB, CHAIRMAN 

JL: JMc:wb