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A IRNEX- GENERAL
XAS

August 21, 1969

HonorableRobert S. Calvert OpinionNo, M-451 Comptrollerof Public Accounts Capitol Building Re : Austin, Texas 78711 Whether a declarationby purchaser,under penalties of perjury, that the tax on all motor fuel which has been purchasedon credit card and Included in claim, has been paid, will support a claim for refund under Article 9.13(6), Dear Mr. Calvert: Motor Fuel Tax Law.

You requestedan opinion from this office and state the Pacts as follows:

"Purchasesof motor fuel for use In aircraft
are usually made by credit card, or in many instancesby several credit cards covering differentbrands of motor fuel purchased,for which the refund dealers deliveringthe fuel
can not Issue receipts for the tax payments. In the past the claimanthas been required to obtain a receipt from the distributors who issued the credit card showing that the tax has been paid by him on the fuel purchased which creates a burden upon the claimant to obtain a receipt, or often several receipts, to supporthis claim.

"Article9.13 of Chapter 9, Title 122A, Taxation-General,

Revised Civil Statutes of Texas, authorizedthe Comptrollerto pay a claim for refund of taxes paid on motor fuel used for non-highwaypurposeswhen made and subscribedby the claimant on a form preecribed by the Comptrollersubject to the (felony) penaltiesof Article 1.12 of said Title 122A for making a false or untrue statementto any material Pact,

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"In lieu of requiringa claimantwho purchase8motor fuel on a credit card to furnish a receipt of payment from the distributorto whom he has paid the tax, the Comptroller

would like to include in the claim form prescribedby him a8 part of the claim filed subject to the penalties of the said Article 1.12, a declaration that the tax on all motor fuel included in the claim which ha8 been pmrchased on a credit card has been paid to a duly licensed distributorof motor fuel in Texas, if it
can be legally accomplished.

"Will you please adviseme whether such statementIn the claim would serve as proof that @the taxes claimedhave actually been paid by the claimant'a8 contemplated by the law?"

The provisionswhich are applicableto the facts presented and thus govern are Articles 9.13(l) and g-13(6), Chapter 9, Title 122A, Taxation-General, Vernon's Civil Statutes,which provide, In part, as follows:

Article 9.13(l):

"In all refund claims Piled under this Article, the burden shall be on the claimant to furnish sufficientand satisfactory proof to the Comptrollerof the claimant'scompliance with all provisions of this Article;Otherwise,the refund claim shall be denied." (Emphasisadded.)

Article 9.13(6):
”

. . . o The claim for tax refund shall include a statementthat the informationshown In each duplicate invoice of exemption attached to the tax refund claim is true and correct, and that deduction8have been made from the tax refund claim for all motor fuel u8ed on the public highways of Texas and for all motor fuel used or otherwisedisposed of In any manner In which a tax refund is not authorizedherein. If upon examination, and

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Hon. Robert S. Calvert, Page 3 (M-451)

8UCh other investigation as may be deemed neces8ary,the Comptrollerfinds that the claim filed for tax refund is ]u8t, and that the taxes claimedhave -ten ac ua he shall issue warrant due the clalmant but no greater amount shall be refunded than has been paid Into the State 'Treasury

on any motor fuel, and no warrant hall b Tess id b th State TreasurerunprEs%ed :or Eayment within two (2) years from the close of the fiscal year in which such narrant was issued, but claim for the payment of such warrantmay be presented to the Legislaturefor appropriation to be made from which said warrantmay be paid." (Emphasisadded.) .t
less presentedfor payment within two (2) years from the close of the fiscal year in which such warrant was issued, but claim for the payment of such warrantmay be presented to the Legislaturefor approprlation to be made from which said warrantmay be paid." (Emphasisadded.)

We conclude that the quantum of proof to be required of the taxpayer claimant for his refund is a matter vested largely within the discretionof the Comptroller. A declarationfrom the claimant subje'ct

to the penalties that he has paid the taxes in question to the duly licenseddistributoris a fact or clrcumstance which would constitutesome evidence or proof of such fact. Standingalone, however, it is not conclusiveevidence upon which the Comptroller might Issue a warrant to such claimant. Article 9.13(6) restrictsthe ComptrollerIn issu%ng warrants for refunds in no greater amount "thanhas been paid into the State

F==f* " Also, such statute requires a "finding"b the Comptroller
rom ev dence as he may deem necessary that the tax tlaim is just and has actuallybeen paid by the claimant. Accordingly,It is the opinion of this office that the Comptroller,In his di8cretiOn, may accept a declarationfrom the claimant, subject to the penaltiesof Article 1.12, Taxation-General, that he did in fact pay the tax In question on all motor fuel which he purchasedand included in his claim for refund, as satisfactory proof that such claimantpaid the taxes to the duly licensed distributor;

provided,however,before the Comptroller may issue his warrant for the refund, the statute contemplatesthat the ComptrollerIn addition find from his examinationof his records and such other Investigation as may be deemed necessary,that the claimantactuallypaid the taxes, the refund claim is just, and that he is not refundingany greater amount than has been paid into the State Treasury on the motor fuel.

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SUMMARY

The Comptroller,In his discretion, may accept a declarationfrom the claimant, subject to the penaltiesof Article 1.12, Taxation-General, that he did in fact pay the tax in question on all motor fuel which he purchasedand included in his claim fpr refund, as satisfactory proof that such claimantpaid the taxes to the duly licensed distributor;

provided,however,before the Comptroller

may issue his warrant for the refund, the statute contemplatesthat the Comptrollerin addition find from his examinationof his records and such other investigation as may be deemed necessary, that the claimant actually paid the taxes, the refund claim Is just, and that he Is not refunding any greater amount than has been paid into the State Treasury on the motor fuel.

y General of Texas v Preparedby Kenneth L. Nordqulst AssistantAttorney General

APPROVED: OPINION GCMMITTEE

Kerns Taylor, Chairman George Kelton, Vice-Chairman Harold Kennedy James McCoy Rick Fisher Houghton Brownlee

W. V. Geppert Staff Legal Assistant

Hawthorne Phillips ExecutiveAssistant

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