Honorable Robert S. Calvert          Opinion No. WW-1462
Comptroller of Public Accounts
Austin, Texas                        Re:   Whether Article 9.13
                                           (7) V.C.S. will permit
                                           the refund of tax paid
                                           on motor fuel used from
                                           a separate fuel tank in
                                           a power pumping unit
                                           operated by the motor
                                           of a motor vehicle which
                                           travels predominantly on
                                           the highway and not over
                                           prescribed courses between
Dear Sir:                                  fixed terminals.
            You have requested our opinion on the following quea-
tion:
                "The Comptroller, 'requestsyour opinion as
            to whether the Permian Corporation is entitled
            to recover a tax refund in view of Article 9.13
            (7) - Chapter 9, Title 122A, Taxation-General,
            Revised Civil Statutes - of the Motor Fuel Tax
            Law, which reads in the applicable parts as
            follows:
                  “‘(7)  No tax refund shall be paid
               on motor fuel used in automobiles, trucks,
               pickups, jeeps, station wagons, buses, or
               similar motor vehicles designed primarily
               for highway travel, which travel both on
               and off the highway except as hereinafter
               provided. (a) If any such motor vehicles
               are used entirely for non-highway pur-
               poses 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 lncl-
               dental purposes, or (b) If any such
               motor vehicles are operated exclusively
               during the period covered in any refund
               claim over prescribed courses lying
Honorable Robert S. Calvert, Page 2 (Opinion No. W’W-1462)


             between fixed terminals or bases, in
             which such vehicles travel the same
             mileage on the highway on each trip,
             and the same mileage off the highway
             on each such trip, then in such cases
             a tax refund claim may be approved for
             the motor fuel used off the public
             highway in such vehicles, only when
             the claimant has kept a complete
             record of each trip traveled over
             any part of the public highway
             showing the date, the highway
             mileage traveled and the quantity
             of motor fuel used in each of said
             vehicles during the period of such
             travel.'",
and inconnection therewfth you have submitted these facts:
             "The Permian Corporation, a private carrier,
          operates some 58 trucks with cargo tanks In
          which It transports petrole,&nliqufds over
          the highways of Texas. Each truck is equipped
          with a power-pumping unit operated by the same
          motor which propels the truck over the high-
          ways and which is used to pump the petroleum
          products in loading and unloading the cargo
          tank.
             "The Permian Corporatfon proposes to
          install a separate fuel tank on each truck
          with a connection to the carburetor feeding
          the motor but with a switch valve which will
          enable the driver to use fuel from the extra
          tank while the truck is stationery for
          pumping the liquid load on and off the
          cargo tank. When the loadfng operatfons
          are completed, the driver Is instructed to
          switch the valve to the regular fuel tank
          from which motor fuel will be used In pro-
          pelling the trucks over the roads and hlgh-
          ways. Permian has requested authority to
          claim tax refund on the motor fuel deter-
          mined in this manner to have been used
          while the motor vehicle is stationery and
          not moving over the highway."
          Section 2 of Article 9.13, Title 122A, TaxationGeneral,
V.C.S., the statute authorizing the refund of motor fuel taxes,
reads as follows:
    .   .




Honorable Robert S. Calvert, Page 3 (Opinion No. ~-1462)


                "(2) Any person (except as herein-
             after provided), who shall use motor
             fuel for the purpose of operating or
             propelling any stationary gasoline
             engine, motorboat, aircraft, or tractor
             used for agricultural purposes, or for
             any other purpose except in a motor
             vehicle operated or intended to be
             operated upon the public highways of
             this State, and who shall have paid
             the tax imposed upon said motor fuel
             by this Chapter, either directly or
             Indirectly, shall, when such person
             has fully complied with all provisions
             of this Article and the rules and
             regulations promulgated by the Comp-
             troller, be entitled to reimbursement
             of the tax paid by him less one and
             one half per cent (14%) allowed dis-
             tributors, wholesalers and jobbers,
             and retailers under the provisions
             of this Chapter. Provided, however,
             no tax refund shall be paid to any
             person on motor fuel used In any con-
             struction or maintenance work which
             Is paid for from any State funds to
             which motor fuel tax collections are
             allocated or which Is paid jointly
             from any such State funds and Federal
             funds, except that when such fuel is
             used in maintenance of way machines,
             or other equipment of a railroad,
             operated upon stationary rails or
             tracks, then such railroad shall be
             entitled to a tax refund on such
             fuel."
          Attorney General's Opinion No. WW-1019 dated March 16,
1961, quoted from Attorney General's Opinion No. o-2381 under
date of July 25, 1940, and we believe these same quotations,
which are copied hereafter, are pertinent to this opinion:
                $1'1. Oil field equipment is used
             which is a licensed or registered motor
             vehicle (truck). On this truck is
             mounted a drilling rig. The truck
             motor is used for two purposes: (a)
             propelling the vehicle from place to
             place, which may be on public roads
             or highways, private property, such
             as leases, or both; (b) operating the
Honorable Robert S. Calvert, Page 4~ (Opinion No. W-1462)


             equipment mounted on the truck strictly
             as a stationary engine,. This is accom-
             plished through a power take-off which
             separates the motor from the truck
             while so used.
                If
                 ‘2 . This same procedure is used In
             connection with the following classes
             of work; namely, post-hole drilling for
             power lines, pumping oil into tank built
             on the same truck, feed-grinding mills,
             oil well cementing, 011 well treating,
             fire engines for pumping water on fire
             after arrival.'


                "'The following situation has never
             arisen; however, the facts are true, and
             as such mustybe given consideration. A
             farmer or rancher uses a registered truck;
             thereon he would have two fuel tanks and
             keep the fuel used for traveling on the
             roads or highways separate from that used
             while driving the same truck on his pri-
             vate property. This would require a
             switch from one fuel tank to the other
             at the proper time; and, furthermore,
             such trucks would not have a power
             take-off arrangement.'
             "Opinion No. o-2381 held that in these situa-
          tions the refund should be allowed if the fuel
          was shown to have been used for operating and
          propelling the registered truck in question
          upon private property and not upon and along
          highways of this State. As indicated in the
          above opinion and the courts generally, where
          there is an ambiguity the question should be
          decided In favor of the taxpayer."
          The law in effect at the time of Opinion No. 0-2381
in 1940 has not been materially than ed since that time. A
pertinent part of Art. 7065b - 13 (by V.C.S. which was in
effect in 1940, reads as follows:
                "No refund of the tax shall be allowed
             on motor fuel used in any registered or
             licensed motor vehicle or in any motor
             vehicle operated or intended to be operated
             In whole or in part upon any of the high-
             ways, roads, and streets of this State."
Honorable Robert S. Calvert, Page 5 (Opinion No. w-1462)


          This prohibition against allowing refunds is in effect
almost identical with the prohibition of today as set forth
above in Section (7) of Article 9.13, Title 122A, V.C.S.
          In answer to this prohibition copied above from the
1940 statute, the writer of Opinion No. o-2381 had the fol-
lowing to say:
             "At first blush, and considering the fore-
          going prohibition without reference to the
          other provisions of the Motor Fuel Tax Law
          pertinent to this issue, It would appear
          that the Legislature has foreclosed the
          question by disallowing a refund of the
          tax on motor fuel used in 'any registered
          or licensed motor vehicle', regardless of
          the nature, location, purposes or conditions
          of such use. In other words, a strict and
          literal Interpretation of this provision
          would require the disallowance by you of
          all filed refund claims for motor fuel
          taxes on motor fuel used in, about or In
          connection with such vehicle, whether on
          or off the highway, and whether used for
          the propulsion of such vehicle or for the
          stationery power purposes indicated in
          your first situation. Under this view,
          no inquiry into the facts and nature of
          the use to which such vehicle was put
          would be required. The sole statutory
          test for the allowance or disallowance
          of a refund claim would be whether or
          not the vehicle in question was registered
          or licensed under the Registration laws of
          the State of Texas. This has heretofore
          been your administrative interpretation
          of this prohibition and the opinion of
          this Department, under prior adminlstra-
          tions; but due to the increasing use of
          motor vehicles, registered and licensed,
          for such non-highway purposes as would
          give right to a refund of the tax on
          motor fuel if used in engines and power
          plants admittedly within the refund pro-
          visions, It is not amiss that this holding
          should be carefully reviewed at this time.
             "It Is elementary that statutes, or parts
          of statutes, pari materla, should all be con-
          sidered together, if harmonious and uncon-
          fllcting, in order to arrive at the true
                                                 .    .




Honorable Robert S. Calvert, Page 6 (Opinion No. ~~-1462)


          legislative intent, which is the paramount
          consideration in the interpretation of
          statutes. We shall therefore consider
          and interpret the provision that 'no refund
          of the tax shall be allowed on motor fuel
          used in any registered or licensed motor
          vehicle' with the other provisions of the
          refund section, particularly, and of the
          Motor Fuel Tax Law, generally, bearing upon
          the nature of the refund and the conditions
          under which the motor fuel must be used to
          be refundable, in order to determine the
          exact limitations which the legislature
          intended to Impose upon the refund prlvi-
          lege."
          It is necessary in all Instances of statutory con-
struction to attempt to follow the intent of the Legislature
in the overall act.
          The various acts and amendments by the Legislature
from the earliest motor fuel tax to date have shown a con-
sistent intent on the part of the Legislature to levy a tax
on motor fuel used to propel vehicles upon the public high-
ways of the state and to exempt from the tax motor fuel used
for purposes other than for propelling vehicles upon the high-
ways.
          When we look at the overall picture, it appears that
part of Section 7 of Article 9.13 which reads,
                 "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 highway except as hereinafter
             provided. . . .",
has reference to vehicles traveling on and off the highway,
with no record kept of distance on and distance off the high-
way. The fuel in this case is used to propel the vehicle
both on and off the highway from the same tank, and there is
no way of knowlng how much fuel is used in either instance.
          The motor vehicle being used as a stationary motor
with fuel being supplied from a special tank, different from
the tank used when traveling on the highway, Is not such a
motor vehicle as "Is operated or intended to be operated
upon the public hi hways of this state", as mentioned in
Art. 9.13, Sec. (27.
Honorable Robert S. Cslvert, Page 7 (opinion IJo;~~-1462)


          According to the facts given, the motor which is
at all times '(while using fuel from the special tank) being
operated in a stationary position off the highway may be
said to be used entirely for non-highway purposes, as is pro-
;I?; in example (a) of Sec. (7) of Art. 9.13, Title 122A,
 . . .
          We are aware of the fact that this interpretation of
the act makes It more,.difflcultto administer and may open the
door to fraud and mistakes as pointed out in your request.
However, it is not for us'to decide whether or not this law
is practical. That was within the province of the Legisla-
ture in passing the law. We must assume the facts are as
set forth in the request and that they will be carried out
as stated.
          At the very beginning of Art. 9.13, Sec. (1) reads
as follows:
                                        'I'.
                                           c ', ,'
                "(1) In all refund claims filed under
             this Article, the burden shall be,on the
             claimant to furnish sufficient and satls-
             factory proof to the Comptroller of the
             claimant's compliance with all provisions
             of this Article; otherwise, the refund
             claim shall be'denied."
This gives the Comptroller authority to deny the claim for
refund unless the claimant furnishes sufficient and satls-
factory proof of compliance with the act.
          You are therefore advised that under the facts given
the tax paid on motor fuel used from a separate tank which Is
used only when the vehicle Is in a stationary position, being
used to pump the petroleum products in loading and unloading
the cargo tank, is subject to a claim for refund under pro-
visions 9.13, Title 122A, V.C.S.



                         SUMMARY

               Under the facts submitted, the tax paid
          on motor fuel used in truck motor to operate
          power take-off for loading and unloading
          truck cargo, which fuel is furnished from
          separate tank from the tank used to supply
Honorable Robert S. Calvert, Page 8 (Opinion No. ~~-1462)


            fuel for propelling truck over the highway,
            is subject to motor fuel tax refund.
                             Very truly yours,
                             WILL WILSON
                             Attorney General of Texas



                                  J. H. Broadhurst
                                  Assistant Attorney Ceneral
JHB:pw
APPROVED:
OPINION COMMITTEE
W. V. Ceppert, Chairman
Bill Allen
Iola Wilcox
L. P. Lollar
Paul Phy
REVIEWED FOR THE ATTORNEY CENERAL:
By: Leonard Passmore
