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                THEA~TORNEY                    GENERAL
                             OFTEXAS
                            AUSTLW     +I. T-EP&%S


                                     September 14, 1959

        Honorable Robert S. Calve&           Opinion    No. WW-701
        Comptroller of Public Accounts
        Capitol Station                      Rc:     N&&her   the Comptroller
        Austin, Texas                                 of Public Accounts can
                                                      approve and pay a claim
                                                      for tax refund filed by
                                                      the Bayshore Rod, Reel
                                                      and Gun Club on motor
                                                      fiel purchased in the
                                                     ,name of the club and
        Dear Mr..Calvert:                             billed'to the club.
                 Your request for an opinion on the above referenced
        subject reads in part as follows:
                "The Bayshore Rod, Reel and Gun Club, a
            corporation whose membership lr made up OS sev-
            eral thousand sportsmen and flrh and game con-
            servationists, has urged that this office  secure
            an optnion from the Attorney Ocneral as to
            whether the club can made valid claim for and be
            paid tax refunds on motor fuel purchased and
            used by its,individual membera in their private
            boats if the motor fuel is purchased in the name
            of and billed to the club.
                 "The Club proposes to proceed as follows in
             filing the tax refund claims:
                "The Club would request of its members that
            when any such member buys motor fuel for use in
            his boat that he ask the refund dealer to issue
            the invoice and invoice of exemption to and in‘:
            the name of the Bayshore Rod, Reel and Gun Club.
            The invoice of exemption received with the pur-
            chase of the fuel would then be mailed to the
            Club by the members where the Club would accu-
            mulate the exemptions from all of such members
            and would file one refund Claim for all of the
            motor fuel so purchased and invoiced in the name
            of the Club.
                 I,. . .
Honorable Robert S. Calvert, Page 2      (Opinion No. WW-701)


         "Will you please advise this office whether
     it can approve and pay a claim for tax refund
     filed by the Bayshore Rod, Reel and Gun Club on
     motor fuel purchased and paid for by its members
     and invoiced in the name of the Club as set out
     above?"
         The Act known as the Motor Fuel Tax Law has been
codified as Article 7065b of Vernon's Civil Statutes, as
last amended in 1957. Provisians concerning refunds of
the tax levied are set out in Section 13, subsection (b)
of which provides as follows:
         "(b) Any person (except as hereinafter
    provided), who shall use motor fuel for the
    purpose of operating orpropelling any sta-
    tionary 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-iii&orfuel
    mhisAr???le,either       directly or indirectly,
    shall,  when such person has fuliy complied with
    all provisions of this Article and the rules
    and regulations promulgated by the Comptroller,
    be entitled to reimbursement of the tax paid bye
    him less one and one-half per cent (l$$) allowed
    ztributors,    wholesalers and jobbers, and re-
    tailers under the,provisions of Section 2 (b) of
    this Article. , . .'
         Section 13 (f) provides that:
     I,. . . The refund claim, with all duplicate
     invoices of exemption required by law to be
     issued with the sale of refund motor fuel inclu-
     ded as a part of said claim, shall be verified
     by affidavit of the claimant, or a duly author-
     ized agent of the claimant, and shall show the
     quantity of refund'motor fuel acquired and on
     hand at the beginning and closing dates of the
     period covered in the refund claim filed.
             If upon examination,      .the Comptroller
     finds'that the claim filed for'tax refund is
     just, and that the taxes claimed have actual1
     been pm    by.thelainant,
                --               then haa    d
     -an-due -- the claimant. . . .
.




    Honorable Robert S. Calvert, Page   3    (Opinion No. WW-701)


         11
              .   .   .



         "If the refund motor fuel was used in aircraft
         or motor boats, the claim shall show the make
         and description of such aircraft or motor boat
         and the quantities of motor fuel used during
         the period of the refund claim." (Emphasis
         supplied throughout.)
             The above provisions clearly contemplate that the
    refund shall be paid to the person who uses the motor fuel,
    after detecnining that "the taxes claimnave    actually
    been paid by the claimant." Under the fact situation sub-
    mitted, the individual members of the club, not the club
    itself, would necessarily be the claimants, as they would
    have actually paid the tax and used the fuel. Moreover, it
    would be impossible for an officer of the club to make the
    affidavits required by the section.
             The Club proposes to have its members, when buying
    motor fuel for use in their boats, request the refund dealer
    to issue the invoice and invoice of exemption in the club's
    name.   This would constitute, in effect, an attempted
    assignment of the right to refund. However, Section 13 (i)
    specifically provides that:'
             "(i) The right to receive a tax refund
         under the provisions of this section shall not
         be assignable except as hereinafter provided.
         Any person residing or maintaining a place of
         business outside of the State of Texas who
         shall purchase motor fuel in any quantity of
         not less than one hundred (100) gallons and
         shall export the entire quantity so purchased
         out of Texas forthwith, nay assign his right
         to claim tax refund to the licensed distributor
         from whom such motor fuel was purchased, or to
         any licensed distributor who has paid the tax
         on such motor fuel either directly or through
         another licensed and bonded distributor in
         Texas. . . ."
             Attorney'General's Opinion No. o-7341, written in
    1946, a copy of which is herewith enclosed, held that the
    Comptroller may not le ally approve a claim forrefund of
    motor fuel tax unless 7 1) the claimant was the actual 'user
    or consumer of the motor fuel and (2) the claimant pur-
    chased such motor fuel directly from a licensed refund
    dealer. It is interesting to note that, at the time this
Honorable Robert S. Calvert, Page 4     (Opinion No. WW-701)



opinion was written, Section 13 of the Act provided that,
"Any person who purchases motor fuel in the State of Texas
. . .' for non-highway use shall be entitled to a refund
of taxes paid thereon. Thereafter, the Section was amended
to read, "Any person. . .who shall use motor fuel. . ."
for non-highway purposes shall be entitled to the refunds.
This seems to indicate an approval by the Legislature of
the holding in Opinion No. o-7431.
         It has been suggested byethe Club's attorney that
this situation is identical to that in Attorney General's
Opinion No. WW-172, which held that the Civil Air Patrol
could apply for and receive'refunds of motor fuel taxes
paid by its members on fuel used in their airplanes. If
the situations are identical, then of course the same
result should here be reached. However, a study of Opinion
No. WW-172 discloses certain important fact differences, as
follows:
         1. The C.A.P., though a volunteer organization,
is chartered by Congress and made an auxiliary of the
United States Air Force. The Bayshore Rod, Reel and Gun
Club is not so chartered. It is, so far as we can deter-
mine, simply a club made up of members sharing common
interests or hobbies, such as fishing, boating, and hunting,
and thus naturally interested in conservation.
         2. The C.A.P., pursuant to itspurpose for exist-
ence, aids Civilian Defense, health, and law enforcement
bodies. The Patrol assigns such missions to its members.
(In observation missions aiding the Civilian Defense Ground
Corps, the members are usually reimbursed by the Federal
Government.for expenditures on gasoline and~oil.) Members
are required to log a minimum number of hours air tine per
month to pres'erveflying proficiency. We quote from opin-
ion WW-172 as follows:
        '(Tojustify the,refund of all the taxes to
    the Patrol, it is necessary to find that the
    Patrol is the Durchaser of the gasoline and
    therefore entitled to the refund. Texas Com-
    pany v. Miller, 165 Fed. 2d 111, cert. den.
    ?7?nJ.s. em.
         "When Civil Air Patrol missions are~~flown,
     the gas, of course,'i"sbeing used for Patrol
     purposes, and hence, ?it would follow that the-
     Patrol is the user and, in effect, the purcha-
     'serof the motor fuel consumed. The flier, who
.




    Honorable Robert S. Calvert, Page 5        (Opinion.No. WW-701)


         purchases gasoline l.nthe name of the Civil
         Air - Patrol for Patrol missions I:', accor;d.-
                                    _
         ingly, merely tne agent for the Patrol."
             In the case under consideration here, so far as we
    can determine, the Club does not assign missions or duties
    to its members; neither does it require them to spend a
    minimum amount of time per month in boating activities.
             From the ;above, it is evident that the very nature
    and purposes of thentwo groups are so dissimilar as to make
    any analogy in this area impossib%&e.
             In addition to ,the word~ingof Secti.on13 of the
    Act, above discussed, and the reasoning of the earlier
    Attorney General's Opinions, we note that the departmental
    int~erpretationby your office has in the past limited such
    refunds to the actual user of the fuel, who has paid the
    tax. For these reasons, yov are here'-yadvised that tax
    paid by members of the club under consideration may not be
    refunded to the club itself.
                              SUMMARY
                   The Comptroller of Public Accounts
              cannot approve and pay a tax refund claim
              to the Bayshore Rod, Reel and GUI-Club,
              where the tax claimed was paid by members
              of the Club on motor fuel used by them
              for a non-taxable purpose.
                                     Very truly yours,
                                     WILL WILSON
    JRI:bct                          Attorney General
    APPROVED:
    OPINION COMMI'TTEE:
    Geo. P. Blackburn, Chairman
    B. Ii.Timmins, Jr.
    Wm. R1 Hemphill
    Wallace Finfrock
    Riley Eugene Fletcher
    Jay D. Howell
    James H. Rogers
    REVIEWED FOR TRE ATTORNEY GENERAL
    By! W. V. Geppert


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