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                    A      IRNEX-       GENERAL
                                 XAS


                        August 21, 1969




Honorable Robert S. Calvert          Opinion No, M-451
Comptrollerof Public Accounts
Capitol Building                     Re : Whether a declaration by
Austin, Texas 78711                       purchaser, under penalties
                                          of perjury, that the tax
                                          on all motor fuel which has
                                          been purchased on credit
                                          card and Included in claim,
                                          has been paid, will sup-
                                          port a claim for refund
                                          under Article 9.13(6),
Dear Mr. Calvert:                         Motor Fuel Tax Law.
     You requested an 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
          instances by several credit cards covering
          different brands of motor fuel purchased, for
          which the refund dealers delivering the fuel
          can not Issue receipts for the tax payments.
          In the past the claimant has been required to
          obtain a receipt from the distributorswho
          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 support his claim.
          "Article9.13 of Chapter 9, Title 122A,
          Taxation-General,Revised Civil Statutes of
          Texas, authorized the Comptrollerto pay a
          claim for refund of taxes paid on motor fuel
          used for non-highwaypurposes when made and
          subscribedby the claimant on a form preecribed
          by the Comptrollersubject to the (felony)
          penalties of Article 1.12 of said Title 122A
          for making a false or untrue statement to any
          material Pact,

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Hon. Robert S. Calvert, Page 2 (M-451)


           "In lieu of requiring a claimant who
           purchase8 motor fuel on a credit card to
           furnish a receipt of payment from the
           distributor to whom he has paid the tax,
           the Comptrollerwould like to include in
           the claim form prescribed by 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
           distributor of motor fuel in Texas, if it
           can be legally accomplished.
           "Will you please advise me whether such
           statement In the claim would serve as
           proof that @the taxes claimed have actually
           been paid by the claimant' a8 contemplated
           by the law?"
     The provisions which are applicable to 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 satis-
           factory proof to the Comptrollerof the
           claimant's compliancewith all provisions
           of this Article; Otherwise, the refund
           claim shall be denied." (Emphasisadded.)
     Article 9.13(6):
           ” . . . o The claim for tax refund shall in-
           clude a statement that 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 otherwise disposed of
           In any manner In which a tax refund is not
           authorized herein. If upon examination,and
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.   .




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


          8UCh other investigationas may be
          deemed neces8ary, the Comptrollerfinds
          that the claim filed for tax refund is
          ]u8t, and that the taxes claimed have
          -ten
          ac ua
          he shall issue warrant due the clalmant
          but no greater amount shall be refunded
          than has been paid Into the State
          'Treasuryon any motor fuel, and no warrant
                                                   .t
           hall b    id b th State Treasurer un-
          less
          Tess presented
               prEs%ed for
                         :or payment
                             Eayment within two (2)
          years from the close of the fiscal year in
          which such warrant
                     narrant was issued, but claim
          for the payment of such warrant may be
          presented to the Legislaturefor approprla-
                                           appropria-
          tion to be made from which said warrant may
          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 discretion of the Comptroller. A declarationfrom the
claimant subje'ctto the penalties that he has paid the taxes in
question to the duly licensed distributoris a fact or clrcum-
stance which would constitute some evidence or proof of such
fact. Standing alone, however, it is not conclusive evidence upon
which the Comptrollermight Issue a warrant to such claimant.
Article 9.13(6) restricts the ComptrollerIn issu%ng warrants for
refunds in no greater amount "than has been paid into the State
         " Also, such statute requires a "finding"b the Comptroller
F==f*
 rom ev dence as he may deem necessary that the tax tlaim is just
and has actually been 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 penalties of Article 1.12, Taxation-General
that he did in fact pay the tax In question on all motor fuel
which he purchased and included in his claim for refund, as satis-
factory proof that such claimant paid the taxes to the duly licensed
distributor;provided, however, before the Comptrollermay issue
his warrant for the refund, the statute contemplatesthat the
Comptroller In addition find from his examination of his records and
such other Investigationas 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.


                           -2242-
Hon. Robert S. Calvert, Page 4 (M-451)


                         SUMMARY
        The Comptroller,In his discretion,may accept a
        declarationfrom the claimant, subject to the
        penalties of Article 1.12, Taxation-General,that
        he did in fact pay the tax in question on all
        motor fuel which he purchased and included in his
        claim fpr refund, as satisfactoryproof that such
        claimant paid the taxes to the duly licensed
        distributor;provided, however, before the
        Comptrollermay issue his warrant for the refund,
        the statute contemplatesthat the Comptrollerin
        addition find from his examinationof his records
        and such other investigationas may be deemed nec-
        essary, that the claimant actually paid the taxes,
        the refund claim Is just, and that he Is not re-
        funding any greater amount than has been paid into
        the State Treasury on the motor fuel.




                                           y General of Texas
                                       v
Prepared by Kenneth L. Nordqulst
Assistant Attorney 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
Executive Assistant


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