PRIVATE CONTRACTOR MAY PURCHASE GOODS AND SERVICES NECESSARY IN THE PERFORMANCE OF A MUNICIPAL OR OTHER GOVERNMENT CONTRACT, FREE FROM SALES TAX. TITLE 68 O.S. 1356(I) (1989) REQUIRES THAT THE CONTRACT HAVE BEEN "DULY ENTERED INTO . . . PURSUANT TO LAW." WE ARE TOLD BY THE GENERAL COUNSEL OF THE TAX COMMISSION THAT THIS PROVISION HAS BEEN CONSTRUED BY THE COMMISSION TO REQUIRE THE CONTRACT TO HAVE BEEN PUBLICLY BID, WHERE A PUBLIC BID IS REQUIRED BY LAW. THERE WOULD NOT SEEM TO BE ANY MEANINGFUL WAY TO PREDICT AND ISOLATE FOR ANALYSIS THE OTHER CONDITIONS OR CIRCUMSTANCES WHICH MIGHT AFFECT THE ENTITLEMENT OF A PRIVATE CONTRACTOR TO PURCHASE GOODS OR SERVICES ON A TAX EXEMPT BASIS.
IN QUESTION FOUR YOU ASK WHETHER A CONTRACTOR MAY FILE FOR A REFUND WHEN THE CONTRACTOR HAS ERRONEOUSLY PAID SALES TAX ON SALES WHICH WERE ACTUALLY EXEMPT. YOU SPECIFICALLY ASK WHETHER 68 O.S. 227 (1981) MAY BE USED TO REQUEST SUCH A REFUND. IT IS OUR UNDERSTANDING FROM THE GENERAL COUNSEL OF THE TAX COMMISSION THAT 227 IS DEEMED BY THAT AGENCY TO BE AN APPROPRIATE VEHICLE FOR APPLYING FOR A REFUND. AGAIN, HOWEVER, THE QUASI-JUDICIAL PROCEEDING BEFORE THE COMMISSION WHICH IS CONTEMPLATED BY THAT AND OTHER SIMILAR STATUTES PRECLUDES THIS OFFICE FROM DETERMINING WHETHER UNDER ANY PARTICULAR SET OF FACTS THE REFUND SHOULD BE GRANTED.
THE FOREGOING ALSO APPLIES TO YOUR FIFTH QUESTION, WHETHER UNDER A PROTEST PROCEEDING FILED PURSUANT TO 68 O.S. 227 THE CONTRACTOR MUST PROVIDE SOME FORM OF PROOF OF AGENCY APPOINTMENT IN ORDER TO AVAIL HIMSELF OF A REFUND. THE PROOF WHICH MAY BE REQUIRED IN ANY PARTICULARLY QUASI-JUDICIAL PROCEEDING IN ORDER TO CARRY THE BURDEN OF PROOF THAT A CONTRACTOR IS ENTITLED TO A REFUND IS A MATTER LEFT TO THE DISCRETION OF THE QUASI-JUDICIAL BODY. THIS OFFICE CANNOT SAY AS A MATTER OF LAW WHAT PROOF MAY OR MAY NOT BE SUFFICIENT IN ANY PARTICULAR CASE.
I REGRET THAT WE ARE UNABLE TO PROVIDE YOU WITH MORE DEFINITIVE ANSWERS TO YOUR QUESTIONS, BUT THESE QUESTIONS, UNFORTUNATELY DO NOT LEND THEMSELVES TO ANALYSIS AND RESOLUTION THROUGH THE UNIFORM APPLICATION OF A GIVEN RULE OF LAW. THE NUMEROUS FACTUAL VARIABLES INHERENT IN YOUR QUESTIONS, WHEN COUPLED WITH THE PRINCIPLES OF PRIMARY AGENCY JURISDICTION ALLUDED TO ABOVE, PRECLUDE MORE SPECIFIC ANSWERS. I HOPE THAT IN THE FUTURE OUR OFFICIAL OPINION SERVICES CAN MORE NEARLY MEET YOUR NEEDS.
(SUSAN BRIMER LOVING)