Untitled Texas Attorney General Opinion ( 1957 )

. . July 19, 1957 Hon. Rdbert 9. Calvert Opinion No. WW-199 Comptrollerof Public Account.6 Capitol Station Re: Motor Fuel Tax Refund Austin, Texas De&r Mr. Calvert: You have reque8ted an opinion a8 M whether you are authorized to pay a Motor FuIl Tax Refund. You refer to Article Verhon’s Civil Btstutee, Mb particularly subdivlei6n (g of Seatlon 13 of #ald~Artiole. aa laet amended by Acta, 1951, 52nd %egisiature,iage 695, Chapter 402, Section XXII, Secsion 4. You eet forth the pertinent facts aa follovis: “A rancher onerates a 200’000 aCre ranch irjKing Courit$,Texas which is b$ected North to S6uth by State Hi way No. 83, and Bast to Weet by State Hsi”ghway NO. 82, on which truoka, plctipS and power wagons are umed for all general ranch purposes. A power wagon is & truck upon which ie lnatalled a separate unit ured for lifting purpoeee. “In the CourBe of, the rcinchw&k these vehiclel), which are all licensed for highway uee by the State Highway Department travel doily or frequently over the bleectlng hlP;hwaJrs n moving such vehiglea from one diviri, on bf the ranch to another. They trrvel from short dietancee up to and ab far &s 22 inlleslper trip between entrance# to the ranch divisions. The Cotiptroller ha8 declined to pay a tax refund claim filed by said rancher becauee ;norecord ~88 kept of the travel over the bigecting state highways and the refund motor fuel used in euch travel was not deducted fPom the claim. Ron. Robert S. Calvert, page 2 (WW-199) "The rancher contends that such vehicles are used entirely on the ranch (off the high- way) except for Incidentaltravel necessary to move the vehicles from one ranch property to another, and that such highway travel is so Incidentalto the basic ranch or non-highway use of such vehicles that it does not constitute a taxable use within the intent of the Legislature. 8, . . . II . . . "Will you please advise whether the Comptrollermay, under the existing law, approve a claim for tax refund In which the claimant has failed to deduct motor fuel used on the highway In incidentaltravel from one division of his ranch to another?" It is our opinion, based on these facts, that you properly declined to pay the tax refund claim for the reason that no record was kept of the travel over the public highway, and the refund motor fuel charged to travel over the public highway was not deducted from the claim. Subdivision (f) of said Section 13 of Article 7065b, as last amended by the same Act of the 52nd Legislaturewhich last amended subdivision (g) of this Article is also applicable. The first paragraph of subdivision (g) of Section 13 of said Article 7065b, as last amended In 1951, reads as follows: I'(g) No tax refund shall be paid on motor fuel used in automobiles,trucks, pick- ups> Jeeps, station wagons, buses, or similar motor vehicles designed primarily for highway travel, which travel both on and off the high- way except as hereinafterprovided. (a) If any such motor vehicles are used entirely for non-highwaypurposes except when propelled over the public highway to obtain repairs, oil changes, or similar mechanical or main- tenance services, or when propelled over the public highway for other incidentalpurposes, or (b) if any such motor vehicles are operated exclusivelyduring the period covered in any . . Hon. Robert S. Calvert, page 3 (WW-199) refund claim . ^. _.over prescribed . . courses Wnf3 . . . between rixea terminals or cases, in wnlcn such vehicles travel the same mileage on the highway on each trip and the same mile- %ae off the hiahwav on each such trio. While the syntax of this paragraph might be altered for more ready comprehension,still It Is evident that the portion of this paragraph beginning with the first under;;;;lng qualifies all the preceding portion of this paragraph. portion ofxe law means just what It says: That a "cornlete record of each trip traveled over an art of th ub&- wa&' must be kept, including all tri;s'for incidizal purposes. 8 record furnishes the basis of the deduction for motor fuel -on the public highway In the claim for motor fuel tax refund. The third paragraph of said subdivision (g) prescribes definite and exact methods by which "A claimant may account for any part of refund motor fuel used upon the public highway, and not eligible for tax refund,. . .'I These methods are clearly described and just as clearly require exact recorded measurement of gasoline or mileage charged to use upon the public highway and deducted from the refund motor fuel covered by any invoice of exemption in the claim. The fourth and last paragraph of said subdivision (g) reads as follows: "The records prescribed hereinabove shall be kept for a period of six (6) months from the date any claim, to which such records are pertinent, is filed in the Comptroller's office, and no tax refund shall ever be paid in whole or Iinpart when a part of the motor Hon. Robert S. Calvert, page 4 (WW-199) fuel purchased on any invoice of exemption contained in the claim has been used to operate a motor vehicle, tractor, or other conveyanceof any kind or descriptionupon any public highway~forwhich a tax refund is not authorizedherein, unless the claimant has kept for the time and in the manner herein provided a complete record of all such uses for which no tax refund 1s authorized.",(Underscoringadded) This fourth paragraph of s&d subdivision (g), like the first paragraph thereof quoted %bove, is clear and unam- biguous in requiring a complete record of every trip traveled over any part of the public highway, irrespectiveof the pur- pose of the trip. The second sentence of the second paragraph of aub- division (f) of said Article 7065b, Section 13, is In harmonv with the various provisions of subdivision (g)-of that Article wherein it states: "The claim for tax refund shall Include R statement that the Informationshown in each duplicate invoice of exemption attached to the tax refund claim is true and,correct, and that deductionshave been made from the tax refund claim for all motor fuel used on the public highway of Texas %i@ for %ll motor fuel used,or otherwise dlsposed~of~in any manner ln'which:%'t&crefund ls:not author- ized herein:" :(Underscorlng%dded) of said Section 13, of said Article Subdivision-"(a) 7065b requires no IaterpretatJonand reads as follows: "In all refund claims filbh"underthis section the ~burdenshall be on the Claimant to furnish sufficientand satisfactoryproof to the Comptrollerof the claimant18 compliance with all provisions of this Article; otherwise, the refund claim shall be denied." This opinion does not consider nor relate to any type of tractor usage upon a public highway, In that your Inquiry covers only trucks, pick-ups and power wagons. (Paragraph2 of the quotation from yourinquiry). _ . . . . Hon. Robert S. Calvert, page 5 (WW-199) SUMMARY When no record Is kept of "refund motor fuel" used by trucks, pick-ups, or Bower wagons while travelingupon a pub1j.c highway between divisions of a ranch, and such motor fuel is not deducted from the claim, as required under the various Sections of Article 7065b, no tax refund on any part of such refund motor fuel purchased %nd~covered by a particular involc~ of exemption and used off of a public highway ie authorized. Yours very truly, WILL WILSON Attorney oeneral BY W. E. Allen Assistant WBA:gs APPROVED: OPINION COMMITTEE H. Grady Chandler, Chairman Mary Kate Wall 'I Howard Mays W. R. Hemphill Wayland C. Rivers, Jr.