                            November      19, 1948


Honorable   Gee. H. Sheppard                Opinion    No.    V-721
Comptroller    of Public Accounts
Austin,  Texas                              Re:   Authority     of the Comp-
                                                  troller   to refund motor
                                                  fuel taxes when the affi-
                                                  davit shows that the fuel
                                                  was used within six months
                                                  from the date of delivery,
                                                  but the claim     was not filed
                                                  until the expiration    of six
                                                  months     from the date of
                                                  delivery.

Dear    Mr.   Sheppard:

        You request    the opinion of this office            upon the two ques-
tions presented   in your letter  of October   22,           1948, which we
quote in full as follows:

            “A claimant    for refund of motor       fuel tax made
       some twelve      purchases     of motor    fuel totaling   1485
       gallons   between    the dates July 9 and November           29,
       1947.   An invoice     of exemption     was properly     issued
       to cover    each separate     delivery,    the last exemption
       being for 275 gallons       delivered    on November      29,1947.

           “On  January   7, 1948 the claimant   had used only
       1265 gallons   of the total purchased   so he filed claim
       for refund of the tax on this amount,      showing   the bal-
       ance of 220 gallons    as being carried    on hand and un-
       used at that date, and warrant     was issued    to pay the
       refund on the 1265 gallons.

           “After   January    7, 1948 the claimant      continued    to
       use the fuel on hand, purchasing         additional    quantities
       from   time to time totaling      770 gallons,    and on June
       23, 1948 he again filed claim        for the 770 gallons      plus
       the 220 gallons     carried   forward    from the previous
       claim.     The Comptroller      notified   the claimant    that
       the 220 gallons     carried   forward    had been purchased
       on November       29, 1947 and must be deducted         from
       the currect    claim   because    more    than six months
       had elapsed     between    the purchase      date of November
       29, 1947 and the date the current          claim  had been filed
Hon.   Geo.   H. Sheppard,      Page   2 (V-721)




       on June 23, 1948.     This action was taken in view of
       Subsection   (d), Section  13, Article 7065(b) Vernon’s
       Annotated   Civil Statutes   of Texas  which reads  in
       part as follows:

              “‘When   a claimant   ‘purchases    or acquires
          for use motor     fuel upon which a refund of the
          tax may be due, he shall within six (6) months
          from the date of delivery      of the motor    fuel up-
          on which a refund is claimed,        and not there-
          after,  file with the Comptroller      an affidavit,
          on such form as may be prescribed           by the
          Comptroller.     . . .

                “‘No refund    shall be made where motor
          fuel is used later than six (6) months           from
          date of delivery       or appropriation,    and no re-
          fund shall ever be made where it appears              from
          the invoice,     or from the affidavits,      or other
          evidence      submitted,    that the sale or delivery
          was made more          than six (6) months     prior to
          the date of filing of the application        for refund.
          The date of filing       shall be the day such claim
          is actually     received    in the Comptroller’s      of-
          fice.    . .’

           “This   department     has construed       the above provi-
       sion to clearly     preclude   payment      of a claim    until the
       motor    fuel has actually    been used since payment           of
       the claim    is conditioned    on proof that the motor         fuel
       has been used within six months           from the date it was
       delivered    to the claimant.      Since a claim       cannot be
       paid until the fuel has been used the Comptroller                has
       likewise    held to the view that the actual use of the
       fuel for exempt      purposes    constitutes     or establishes
       the claim    for refund and that a claim         does not exist
       until the fuel has been used for exempt            purposes,     and,
       therefore    a purchaser     could not legally      file on a claim
       that does not exist until the motor fuel has been used
       for exempt      or refundable    purposes.

           “The claimant      in this instance,   however,     contends
       that when he reported        the 220 gallons   of fuel, pur-
       chased    for exempt     use, as being on hand and unused
       in his claim    filed January     7, 1948 that such report
       constituted    a claim    for refund on the tax as of the
       date of the claim      and that tax refund on the said 220
       gallons    can be legally    paid when the motor      fuel has
       been used for refundable         purposes   subsequent    to the
       date the claim      was filed provided    that subsequent
Hon.    Geo.   H. Sheppard,    Page   3 (V-721)




       proof has likewise   been furnished         to show that said
       motor   fuel was used for refundable          purposes    with-
       in six months   from the date of its        delivery   to the
       claimant.

           “The Comptroller     has been furnished       proof that
       the 220 gallons   of motor    fuel involved    here was us-
       ed for refundable    purposes     within six months    after
       it was purchased    on November        29, 1947.

           “Your   answers      to the following   questions   are
       therefore    respectfully     requested:



           “Can the Comptroller      legally   issue    a warrant  to
       pay a claim    for tax refund on motor        fuel properly
       used for refundable     purposes    within six months
       after its delivery   to the claimant,     when said claim
       has been filed prior to the time such motor            fuel
       has been actually    used for refundable        purposes?

            “Does filing a claim      within six months       from the
       date of purchase       and delivery     of motor    fuel which
       claim    shows that the motor fuel is not used at the
       time of filing the claim,       lift the six months      limi-
       tation prescribed       by Subsection     (d), Section     13,
       Article    7065(b)    Vernon’s    Annotated     Civil   Statutes
       of Texas     and authorize      the claimant      to file claim
       on the motor       fuel at a subsequent        date when the
       motor    fuel is used within six months           from the date
       of purchase     and delivery?      w



         It is necessary     for us to consider       Subsection     (d), Sec-
tion 13, of Article    7065(b),     V’. C. S., quoted    in your     letter.
We need be concerned            only with the question        of the 220
gallons   of motor     fuel delivered       to the claimant      November
29, 1947, as reflected        by the last exemption         certificate.
On January      7, 1948,   the claimant       filed  on Form      7065-E
his Affidavit     of Claim     for refund     of the tax paid on ex-
empt motor      fuel as provided       under    the statute   on the mo-
tor fuel he had used up to that time.             The claim    showed the
purchase     of 1485 gallons      of motor     fuel, but only 1265 gallons
had been used,      and 220 gallons       was on hand at this date not
Hon.    Geo.   H. Sheppard,   Page   4 (V-721)




used, all as reflected     by the Affidavit   of Claim      received    in
the Comptroller’s     office  January    7, 1948.

         Apparently    it is claimant’s     contention     that his Affidavit
of Claim   filed January     7, 1948, on which was shown this 220 gal-
lons of motor    fuel as unused constituted         a claim for refund       of
the tax paid thereon,     and that his subsequent         Affidavit   of Claim
received   by the Comptroller       on June 23, 1943, showing          the use
of this 220 gallons    of motor    fuel within six months         from the
date of delivery    was a sufficient     compliance      with the statute.
To this we cannot agree.        Our view is that the claimant           did not
actually  file his Claim     for Refund on this 220 gallons          of motor
fuel until he filed his second Affidavit         June 23, 1948, which did
in fact show the use of this motor         fuel within the six-months’
period from the date of delivery.          Even though this Affidavit
showed the use of this motor         fuel within the six-months’          peri-
od, it is quite obvious     that the claim     was not filed within six
months   from   the date of delivery      November       29, 1947, as re-
quired by the terms      of the foregoing      statute.

         If the subsequent      Affidavit    of Claim,   which showed the
use of this motor     fuel together      with the use of other motor       fuel
purchased     subsequent    to the filing of the first     claim,   had been
filed within six months       from November         29, 1947, instead   of
June 23, 1948, said 220 gallons          would be subject     to a tax re-
fund, and no question      could arise      as to the time of filing of
the claim.

         The statute  clearly  contemplates    that a claim   for refund
be filed after the use of said motor     fuel and not before.     This is
manifest   from the following    excerpt  from the statute    quoted a-
bove, describing    what the affidavit,  which is in fact the claim,
should contain.   Some of the provisions     are:

            “Use for purposes    other than in propelling    motor
       vehicles   over the highways    of this state . . .; man-
       ner in which said motor fuel was used, and that no
       part of said motor    fuel was used in propelling      mo-
       tor vehicles   over the highways     of this state . . .;
       that no refund shall ever be made when motor           fuel
       is used later than six months      from   the date of de-
       livery.”

          We think, under the statute,     the claim   that was filed June
23, 1948, and not the one that was filed January          7, 1948, was the
claim    which the Comptroller      was required    to consider    in determin-
ing if the claim had been filed within six months          from the date of
delivery.     If this be true, then the claim    was filed later than six
months    from the date of delivery,     November     29, 1947, and hence
cannot constitute     the basis  for refunding   the taxes.    The statute
Hon.      Geo.   H. Sheppard,   Page   5 (V-721)




clearly      says:

            “When a claimant    purchases     or acquires for use
       motor    fuel upon which a refund of the tax may be
       due, he shall within six (6) months       from the date of
       delivery    of the motor  fuel upon which a refund is
       claimed,    and not thereafter,   file with the Comptrol-
                                       pm as may be prescribed
       by the Comptroller..     . .” (Emphasis      ours)

          The following,    therefore,     will answer    both your ques-
tions:     The Comptroller      may not issue a warrant         to pay a tax
refund claim      on motor   fuel, unless,     as provided    in Article   7065(b),
Subsection     (d), Section  13, the motor      fuel has been used and
claim   filed within six months        from the date of delivery.        No
claim   arises    until the motor    fuel is used; hence the claim must
be filed after the use and not before.



                                SUMMARY

           The Comptroller       is not authorized      under the terms
       of Art.  7065(b),   Subsection    (d), Sec. 13, to issue    his
       warrant   refunding    taxes   on motor     fuel unless  the mo-
       tor fuel is used and the claim        filed within six months
       from the date of delivery       to the purchaser.       A claim
       cannot be filed until the motor         fuel is used.



                                           Very      truly     yours

                                 ATTORNEY           GENERAL            OF   TEXAS




                                 By            Lxzo~-
                                                .  Assistant
LPL/JCP



                                 APPROVED:




                                          ASSISTANT
                                                GENERAL
