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                   OFFICE   OF   THE   AlTORNEY
                                           AUSTIN
                                                    GENERAL       OF      TEXAS


    aRQ”LR SLLLL~S
I



       Honorable Geo. Ii. Sheppard
       Comptroller 0r Public AOoount8
       State of Texas
       iruatin, Texas
       Dear Sir:                       Opinion No. c-k.6
                                       Rer   Tirms allow




                                                                          claim for reiund




                                                    OW gallons of gasoline
                                                     llaensed dealer,:and  obtalm
                                                     t the time 05 Usll~ery.
                                                     of dell~sry,  under date of
                                                    r0queeting      r0itma     or    tax on




                                        P the Comptroller        ieaues    warrant    refunding   i
                                         gaZlons uPed.
                   OThe question now arises as to when limitation  run@
             on the r&and or the tax on the remaining 500 gallons.
                   wb4mtion       a or .s,eotlon 13 or the'ldotor              Fuel A6t       .
             read8 in part at3 follows:               3.. “,
                                                                             405   ,

                                                                                   .^.

uonorable    Ceo. 3. Shep.jard,         page 2


            nV:!:hon e olaimant purchases or aoqukres for use
     motor fuel upon which a refund, of the tax lnay be due,
     he shall within six (61 months from the date or delivery
     o.f the motor fuel upon whloh a refund is olaimed, and not
     thereafter,   file with the Comptroller an affidavit   upon
     suoh form as may be presoribed     by the Comptroller. . .
             ncNo refund shall be made where motor fuel is usea
     later than six (6) months from date of delivery           or appro-
     priatlon,    and no refund shall ever be made where it appears
     Won the invoice,      or from the afS&avlt,       or other evoidenoe     .~
     submitted, that the sale or delivery was made more than
     six (6) months prior to the date of filing          of the applloa-
     tion for refund.       The date of filing    shall be the day suoh
     olala Is actually reoelved ln the .Comptraller*s offloe.
     In addition to other penalties       presoribea    In this Artiole,
     It is herein provided that a felony oonvlotion          for a viola-
     tion of any provision      of this Seotion of eaid Articls      shall
     automatioallp    forfeit   the right of said oonvioted person to
     sell motor fuel for refund purposes, and shall forfeit           the
     right   or said oonvloted person to rile a olaim and obtain a
     refund ror a period of one (1) year from the date of said
     oonviotion.9
            "You all1 note from the above quoted Seotion that it
     provides no reiund shall be mado where the motor fuel is used
     ;;iy   than six months fron the date of dsliVtprs or aPProDrla-
     A
            *Must the olalmant use the 500 gallons and file hie
     olalm with the Cowtroller   by July 1, 1944, whloh Is 8lx
     months frsm&e, date of delivery,   or does he have until
     IWvember 1, 19l4, 5.r whloh to use the motor fuel and file
     his alaim, which later date is six months from the date he
     filed his former olaln?
              Vhen a olalmanthas riled his claim in due order and
     time,    showing   ti      or motor .fusl on hand and unused in
                             qucmttty
     such olalm, does the phxase 'or appropriation*    extend the
     period ol linitatlon  on the quontlty, on hand for six months
     fro,x data suoh olaim is filed with the Comptroller?W
            In this oonneotion it is neoessary       to oonstrue the-
various subaeotions of Geotion 13(d),   Artiole      7065(b), Vernon’s
hnotatea   Civil Statutes,  in order to olassify      the persons entitled
to a refund or the motor fuel tax thereunder.
                                                                                           406

i:,,,   ao?lorable Geo. II. Sheppard,     page 3


                       The term 9efuud    dealer"   Is defined     by the Artiole
        aa rollowe 8
                     \ “The tern *refund dealer* wherever used in thla
                Artlole shall mean any dealer, distributor,  or other
                person who engages in the sell1
                aJ)roDrlataB for his Own use
                                           ~o",'s~;~r,,'u2t:;
                                              a                      El
                on which a refund of the tax paid on suoh mDtor fuel lB
                authorized by this Artiole.n
                    SubBeOtlon (i&j or Seotlon 13(d) of the Artt01e defines
        ths two olasses of usere entitled   to tax refunds as follcmsr
                     “anj- person who wrohasee motor rue1 In the State or
                Texa8, ati tinydistributorwho awroDriates motor rue1 for
                use.   . . shall   be refunded   the amount   0r   euoh taxse   . . .v
                   Subseotlon (b) of Se&ion 1.3(d)of the Artlole pro-
        vides for the lssuanoe of a refund UealQr~s lloenee to aell
        ruoh motor fuel, ana is In part as folltxws:
                       9?0 refund of the tax shall     be granted     to any permm,
                01 numt Era, oorporation,or otherwise,uuless suoh
                iii&if  el has been ohasea rr0m or usea bs a lloensed
                refund dealer as pr             is Art101e: . . ."
                   Subseotion (0) or SectlOn 13(d) or the Artiole~:prcnldrn
        Sor involoes of exemption to *be demanded by the purohaaer or
                                     for refund purposss, and upon eaoh
                                     or upon saofi sromiation   r0r use
                                           of. tax my be olaimed, an invoioe
        Of exemption shall be issued ahowlng the date of Buoh dellver~,
        Or of snob apDroprlation for use . . .v
                     Subsection (a) of Seotlon 13(d) of the Artlole             provides
        for the filing %na payment of Olalms for refund;

                       -(aI Zhen a olalmant purchases or acaulres for use
                motor Cue1 upon which a refund of the tax may be due, he
                shall within six (6) months from the
                motor fuel upon which a refund is 01
                rile with the Coaptra3J.er an arfidav
                presarlbed by the ComptrolSer.  S ln
..

         Honorable Gee. K. Shepwrd,     page i+


                     “No refund shall be made when motor fuel la used
                                                                  ----
              later thas sir (6) months from the date OS Uellve; F9or
              appropriatioQ    and no refund shall ever be .-de when it
              appears from the luvoioe,    or fro= the afSi&mlts, or other
              eVldencs submitted,   that the sale or
              more than six (6) months prick       the
              the amlloatlon    SOT r8Sund.W (3mphasss ours)
                      Brom the foregoing   subsootiom    it is apparent that
         the Legislature    intended to and did distinguish     between a
         prtson who purohases motor fuel for us%. and a distributor        who
                        rotor Suol for use.      !Phroughout these subaeo t ione
                        the word8 *purohasi3w, Tdell* or *aale” and ndelivew
         is applied to a person who urohasos motor fuel from a lloenaed
         dealer upon whl.oh a clak!i       tax ~ofund may be filed,    while the
         ueage oS the word8 *appropriation”       or *Appropriate for useW and
         *AOQU~ZW*   or *aoquisition~   is applied to a dlstrib    tor who
              ro riate@    or sets aside e portion of motor
                                                          ---&hxom          hie
         ;-              to be used r0r the speoifle purposes set rorth in
         the Artlole entltllng     him to a rel’und OS the tax.




                                                        prior    to July 1, 1944.
                     In mswer to ths eeoonb question, since the olaiment
         wae~a purchaeer Srom a lloenaed dealer and not a distribute       who
         ~pProJtr%atrd suoh motor Sue1 the phrase “or approprewouia
                                                                 8
         not extend the period OS limitation  OS US8 or filing   hi8 olaim
         for refund within 83.x (6) aonthe Srom the dote o? dellvem     of
         8Uah motor fuel to him.
                     Trusting   that the foregoing   Sully   snswers   your questlone,
         we are
                                               Yours very truly




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