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July 30,1952

Hon. Robert 6. Calvcrt Opinion No. V-1487 Comptroller of Public Accounk Auetin, Texam Ret Authority of the Comptroller of Public Account6 to honor niotor fuel tax refund claim6 which have been revised to exclude those based on exemption invoke6 falsified by Dear Sir; claimant’0 boohheeper

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Your request for anopinion of thk office ia based on the following fack:

Your office hag received two refund claims in the amount6 of $743.35 and $574.53, which were filed under the provkions of Article 7065b-l3, V. C. S. The fir& claim k for refund of tax on motor fuel ueed by the claimant inhi6 ownfarming operations, and the second ta for refund on motor fuel used by the estate of a deceaned perron, thefarming operations ofwhich are under the mupervkion andmanagement of the firrt claimant.

Attached to andflied a8 a part of thefiret claim were four duplicate invoicee ofexemption which had been falrified by alterationmofthe dakr of purchase and delivery, tobring them within the six montha’ limiktion fixed by law for the payment of tax refunds. Attached toandfiled a8 a part of the second claim were sfx dupticate invoiceB of exemption falrified in the mamemanner andfor the Bame parpone. All ten of the alkred invoice& ofexemption were precluded by law from tax refund becauee deliveries, as shown by the date8 on theoriginal copies of Bachexemption6 mainkined by the refund dealer, were made more than six month8 prior to the date the ciaimr were executed and filed.

You have been informed thatboth claim8 were prepared by an employee whokeeps the books of‘the twofarming operations. Both claims were eubecribed and aworn toby another employee who ack as farm manager of the two operations. Payment ofboth claims was denied under the provkione of mtbdivkion (f) ofArticle 706513-13.

The attorney for these claimant* har e&ted in rubstance that theboohheeper, not realiuiug the seriousneBB of the offenne and in order toavoid censure for letting the exemptions become pant due, had changed thedates on the exemptioau ofher ownvolition andHon. Robert ~6.Culvert, Rage2, **(V-1487) i**  **I: ;,,**  **,, :** 
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without the authority, direction, or knowledge of ths individnal claimant or anyone else in the organination of either claimant, and thatneither the individual claimant nor theexecutor of the estate would have condoned such act.

On thebasis ofthe above facts, you ask whether your department can legally permit the claims here involved tobe revised to exclude the altered invoices of exemption andthen pay them in the amounts computed from the unaltered exemption invoices. The pertinent parts ofArticle 7065b-13. V.C.S., read as followsr

“(a) Inall refund claims filed under this section the burden shall be on the claimant tofur&h sufficient and satisfactory proof to the Comptroller of the claimant’s compliance with all provisions ofthis Articlei otherwist, the refund claim shall be denied. s(b) Any person, (except as hereinafter provided) who shall use motor fuel for the purpose of operating or propelling any stationary gasoline engine, motor boat, aircraft, or tractor used for agricultural purposes, or any other purposes except in a motor vehicle operated or intended tobe operated uponthe public highway of this State, andwho shall have paid the tax imposed uponsaid motor fuel by this Article, either directly or indirectly, shall, when such person has fully complied with all provisions of this Article and the rules and regulstions promulgated by,the Comptroller, be entitled to reimbursement ofthe tax paid by him less one pe.r cent (1%) allowed distributors for collecting and remitting the tax andcomplying with other provisions of the law.

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**. .**  **.** s(d) When motor fuel is ordered or pnrchased **for** refund purposes the purchaser or recipient thereof shall state the purposes for which such motor fuel will be used or is intended to be used, and shall request an invoice of exemption which shall be made outby the 6elling refund dealer at the time of such delivery, or, if the motor fuel is appropriated for use by a refund dealer it shall be made outat the time the motor fuel irrappropriated or set aside for refund purpose,s. The invoice of exemption shall state: the refund dealer’s license numberi the date of purchase andthe date of deliveryi thenames andaddresses of the purchaser andthe selling dealer@the purpose for which. ., . Hon. Robert S. Culvert, page~3.(V-1487)

such motor fuel wlll be used or is intended tobe usedi the number of gaIlonr.delivered, or appropriated for use1and any other information theComptroller~ may prescribe., No refund shall be allowed unless an invoke of exemption is made out at,the time **of** delivery, except as hereinafter provided.

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. . . s(f) Any person entitled tofile claim for tax refund under the terms of this Article shall file such claim with the Comptroller onaform prescribed by the Comptroller within six (6) months from the date the motor fuel was delivered tohim, or from the date the.motor fuel was lost, exported or sold tothe United States Government, andno refund oftax shall ever be made where it appears from the invoice of exemption, or from the affidavits or **other** evidence submitted, thatthe sale or delivery of motor fuel was made more thansix (6) months Drier to the date the

andclosing dates of the periods covered inthe r:fund claim filed.

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“It shall be the duty of every person claiming tax **refund** tover e contents 0 **for i**  refund ona<y sue: p”r’sF %othall file cla:z e claim filed andan

mo or **ue** which has been used to propel a motor vehicle, tractor or **other** convevance uuonthe public hishwav of

‘Texas for anv ourn&ePfor which a tax refund ii not **au** thoriaed her&. 0; who shall file any duplicate invoice or exemption in a claim for tax refund onwhich anydate, figure or other material information has been falslfled or altered after said duplicate invoice ofexemption has been duly issued by the refund dealer anddelivered to the claimant, shall~forfeit his right to’the entire amount of therefund claun filed. (ISmphasis added.) Under the’submitted facts the ten invoices of exemption which were altered involved sales or deliveries of motor fuel which were more. thansix months prior to the receipt of the refund claim by the Comptroller.Hon. Robert S. Calvert, page 4 (V;lrSn _ . .

I There 16no question butthatthe refund claims represented

by the kn altered or falrifkd invoice6 of exemption are barred from payment by the six months’ limiktion provided by sktuk. The only question tobe determined here is the legality ofpaying the portions ofthe two total refund claims which were properly filed within the slz months’ period andwhich were subskntiakd’by analtered lxxvoices of exemption.

The taxrefunds authorized by the Motor Fuel Tax law are in the nature **of** exemptions or exceptions andmust be strictly construed. The right of the claimant to mahe application for a refund is statutory andthe procedure set outin the statute must be strictly complied with to entitle the claimant to that right. Att’y Gen. Op. O-6363 (1945)i Armstrong v. Driscoll Construction Co., 110P.2d 651 (Colo. Sup.7941).

The tax refund section of the act **conkim** detailed reporting and recording provisions which were designed toprevent kz evasion, fraud, and the filing of stale claims and toaid in a uniform andefficient administration of the law. The forfeiture pr.ovisions of subdivision (f) ofArticle 7065b-13, V.C.S., here involved, were only recently enacted by the Legislature (Section XXII ofChapter 402, Acts 52nd Leg., R.S. 1951, p. 695) in anobvious attempt to strengthen the act with regard to thefiling of falsified or altered refund claims.

In construing this statute, it is apparent to us thatthe clear intent of the Legislature was set forth in plain wording in the provision that the claimant sshall forfeit his right to theentire amount of the refund claim fileds where the invoices, of sxempfionre altered or falsified with regard to dates, figures, or other material information. Responsibility for the acts of theclaimant’s agent or employee infalsifying or altering the invoices of exemption must be imputed to the claimant, otherwise the particular forfeiture provision could, as a practical .matter, be circumvenkd with impunity.

There is no statutory provision whichwould authorize the Comptroller towaive this forfeiture provision onequltable or other grounds andhe, therefore, has no authority todo so. Att’y Gen. Op. V-835 (1948).

Your request did not present any questions with regard to, andwe are not passing upon, the possible applicability ofvarious other statutory provisiozs for fines, penalties, or criminal prosecution in this instance.

It is our opinion that the person claiming the taz refunds in question,, which included certain altered or falsified invoices of szemption. forfeited his right to the entire claims which were filed.**!**
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**-.. .**  Hon. Robert S. Calvert, page 5 (V-1487)

SUMMARY The right ofa claimant to the refund of motor fuel taxes which is based inwhole or in part on’altered or falsified invoices of exemption **must** be forfeited in its entirety. Art. 7065b-13(f), V.C.S. APPROVED: W. V. Geppert Taxation Division **Mary** K. Wall Reviewing Assistant Charles D. Mathews First Assistant **Yours** very truly, PRICE DANIEL Attorney General

?izkEGk Assistant