          TEEATTORNEYGENERAL
                       OF      TEXAS
                      AUSTIN    m.TExae



                       April 19,     1962

Honorable Robert S. Calvert          Opinion No.   WW-1315
Comptroller of Public Accounts
Capitol Station                      Re:   Whether a motor fuel tax
Austin 11, Texas                           refund may be made under
                                           Article 9.13(b) to a
                                           purchaser who had not
                                           requested an invoice of
                                           exemption at the time of
                                           purchase of the motor
Dear Mr. Calvert:                          fuel.
     You request the opinion of the Attorney General on the
question of whether a city which has purchased refund motor
fuel but which did not request an invoice of exemption and
to cover which purchase no invoice of exemption has been
issued, may receive a refund of the excise taxes paid under
the Motor Fuel Tax Law (Chapter 9 of Title 122A, Taxation-
General, V.C.S.).
     You state further that the official representing the
city entered into a contract with a refund dealer to sell
motor fuel to the city for use by its various departments,
but that no request was made of the refund dealer for invoices
of exemption as the fuel was to be delivered. Neither did the
representatives of the city make request for any invoices of
exemption as they purchased the fuel. You further state that
the failure of the city representatives to request invoices
of exemption apparently was a mere oversight on their part.
     Our answer to your inquiry is that none of these motor
fuel taxes may be refunded.
     The pertinent and controlling statutory provisions are
the following provisions of Article 9.13, Title 122A, Taxation-
General:
         "Art. 9.13
           "(1) In all refund claims filed under
         this Article, the burden shall be on the
         claimant to furnish sufficient and satis-
         factory proof to the Comptroller of the
Honorable Robert S. Calvert, Page 2      Opinion No. WW-1315


        claimant's compliance with all provisions
        of this Article; otherwise, the refund
        claim shall be denied.
          "(2) Any person (except as hereinafter
        provided), who shall use motor fuel for
        the purpose of operating or propelling any
        stationary gasoline engine, motorboat, air-
        craft, 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 Comptroller, be entitled
        to reimbursement of the tax yaid by him less
        one and one half per cent (l&) allowed
        distributors, wholesalers and jobbers, and
        retailers under the provisions of this
        Chapter. . . .


            "(4) When motor fuel is ordered or purchased
        for refund purposes the purchaser or recipient
        thereof shall state the purpose for which such
        motor fuel will be used or is intended to be
        used, and shall request an invoice of exemption
        which shall be made out by the selling refund
        dealer at the time of such delivery..-. . No
        refund shall be allowed unless an invoice OF
        exemption is made out at the time of delivery,
        except as hereinafter provided. If it be
        shown by evidence sufficient and satisfactory
        to the Comptroller that an invoice of exemption
        had been duly requested by a purchaser of
        refund motor fuel or his agent at the time
        of the purchase or delivery and that its failure
        to be issued was through no fault of the
        claimant, then the Comptroller may, if he finds
        the motor fuel has been used for refund purposes,
        issue   warrant in payment of the claim." (Bnphasis
        supplied.)
     Pursuant to the above statutory requirements, and based
upon the facts stated in your inquiry, the city clearly failed
to comply with the statutory requirements in the following
respects:
Honorable Robert S. Calvert, Page   3       Opinion No. WW-1315


     1. It failed to meet the burden of furnishing sufficient
and satisfactory proof to the Comptroller that it had complied
with all the requisite provisions of Article 9.13, as required
in subdivisions (1) and (2) of this Article.

     2.  The city failed to request an invoice of exemption
at the time of the respective deliveries of the fuel purchased
as required in subdivision (4) of this Article,

     3.  No evidence is submitted to excuse the responsibility
imposed by the foregoing statutory provisions upon the city to
request the requisite invoice of exemption, and in lieu of such
requests we know of no authority authorizing the seller of
the motor fuel to furnish such invoices.
     The above statutory provisions are clear and emphatic.
We believe they must be applied according to their plain and
unambiguous terms. Federal Crude Oil Co. v. Yount-Lee Oil Co.,
122 Tex. 21, 52 S.W.2d 56 (1932), 39 Tex.Jur. 160-161, Statutes,
Sec. 88.

                          SUMMARY
              A refund of motor fuel taxes may not
         be made under Art. 9.13, Title 122A, Taxation-
         General, where the purchaser did not request
         invoices of exemption at the time of the
         respective purchases or deliveries of the
         fuel and no such invoices were issued.
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas



WEA/cm
                                    Assistant
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Marvin Sentelle
Jerry Roberts
Malcolm Quick
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee, Jr.
