Hon. Robert S. Calvert        OPINION RO. WW-309
Comptroller of Public Accounts
Capitol Station               Re: Conetruction of Section
Austin 11, Texaa                  2(b) of Article 7065b,
                                  V.A.C.S., a8 amended by
                                  the Regular Session of
                                  the 55th Leglalature a8
                                  to the amount of tax to
                                  be allocated to the
                                  Comptroller for enborce-
Dear Mr. Calvert:                 ment purposes.
        You request the opinion of this office upon the
above captioned matter presented in your letter of November
a, 1957,as f0n0ws:
            "We desire the opinion of your office
        regarding the conetructlon of Section 2(6)
        of Article 7065b, Vernon's Annotated Civil
        Statutes, as amended by Chapter 200, Regular
        Session of the 55th Legislature.
           "The said Section 2(b), as amended In
       the first paragraph, reads aa follows:
           "'Provided, that the tax on one and
       one-half per cent (13s) of the taxable
       gallons of motor' fuel sold OP distributed
       In this State shall be allocated to the
       persona selling, distributing, or handling
       eald motor fuel OP the taxes collected
       thereon, which aaid allocation or allowance
       shall be deducted In the payment of said
       tax to the State of Texas in the following
       manner: The tax on one and one-half per
       cent (1s) of said taxable gallonage shall
       be deducted by the distributor who refines,
       imports into, or produces motor fuel in
       Texas and makes the first taxable sale or
       distribution thereof; the tax on one and
       four-tenths per cent(1 k/10$) of said
       taxable gallonage shall be deducted by
       the distributor who purchases motor fuel
Ron. Robert S. Calvert   Page 2   (w-309)


       tax free from another licensed distributor
       under authority issued by the Comptroller
       and makes a taxable resale OP distribution
       thereof; and one-tenth of one per cent
       (l/10 of 1%) of the tax collected upon the
       resale or distribution of motor fuel pur-
       chased tax free by a distributor shall be
       set aside in the State Treasury for use by
       the Comptroller as hereinafter provided.'
            "After allocating 13% of the TAXABLE
        GALLONAGE to persons selling, distributing
        or handling motor fuel or the taxes collec&-'
       ted thereon in paragraph one, cited above,
        the nextparagraph,prornhdes:~that:.thecabove
        allocation OP allowance. . . shall be
        apportioned among all persons selling,
        distributing or handling motor fuel or the
        tax collected thereon In this State as follows:
     I. 11I    l/2 of 1% to the distributor who
        refines, imports into or produces motor
        fuel in Texas and makes the first taxable
        sale or distribution of said motor fuel.
    II. )I'.    l/2 of l$ to the wholesaler or
        jobbkr'who pays the tax to a distributor
        on motor fuel purchased for resale . . .
   III. "1. . . l/2 of 1% to the retailer . . ,
        making a sale or distribution of such
        motor fuel . . .
    IV. "'Provided that the tax on . e . g/10 of
        1% of said taxable gallonage shall be appor-
        tioned to a distributor who performs functions
        both as a distributor and as a wholesaler
        or jobber by paying over to the State ~of
        Texas taxes collected upon the resale OP
        distribution of motor fuel which has been
        purchased tax free . . . and thereafter
        resold or distributed at wholesale to
        retailers; . . .
     v. "1.     l/10 of 1% of the tax collected and
        paid'oier to the State upon the resale or
        distribution of motor fuel purchased tax
        free by a distributor . . . shall be allo-
        cated to and set aside In the State Treasury
Hon.i:Robert S. Calvert, page 3 (WW-309)



       for use by the Comptroller in the adminlstra-
       tion and enforcement of the provisions of
       this Article.'
            "The auestion concerns the wordinn of
        subdivision V above,.which provides that
        l/10 OP l$ of the taxes collected and paid
        over to the State upon the resale of motor
        fuel nurchaaed tax free shall be allocated
        to the Comptroller, instead of l/10 of 1s
        of the taxable gallonage sold, as was
        originally allocated for such purpose.
           "In other words a distributor reselling
       motor fuel purchased tax free deducts 1 b/10$
       of the taxable gallonage and pays over to the
       State the tax on 98.6% thereof, and if the
       statutory provisions setting out how the allo-
       cation or allowance shall be apportioned con-
       trols over the statutory allocation Itself,
       then the Comptroller would only receive l/10
       of 1% of 98.6 $ of the taxable gallonage.
            "Will you please advise us whether the
        Comptroller is entitled to receive l/10 of
        1% of the 14% taxable gallonage originally
        allocated, or will he-be limited to l/10 of
        1% of the tax paid over to the State on said
        taxable gallonage?"
        We are primarily concerned with the construction
and application of Section V which appears on page 2 of
your letter, which provides:
     v. "1.   . l/10 of 1% of the tax collected and
        paid'over to the State upon the resale or
        distribution of motor fuel purchased tax
        free by a distributor . . . shall be allo-
        cated to and set aside in the State Treasury
        for use by the Comptroller in the adminis-
        tration and enforcement of the provisions
        of this Article.'"
        It is observed that l*$ of the taxable gallonage
is the maximum that may be allocated to the distributor,
the wholesaler or jobber, and to the retailer or other :
person making a sale or disfribution of such motor fuel
to the person using or consuming such motor fuel or to a
distributor who functions both as a distributor and as a
wholesaler or jobber.
Hon. Robert S. Calvert,   Page 4   (WW-309)


        A portion of Section 2(b) reads as follows:
        1,. . . and one-tenth of one per cent (l/10
        of 1%) of the tax collected upon the resale
        or distribution of motor fuel purchased tax
        free by a distributor shall be set aaide in
        the State Treasury for use by the Comptroller
        as hereinafter provided.(Fmphasis supplied.)
        It becomes important to observe what is Hherein-
after provided". The allocations numbered I to V in-
clusive are all, in the language of the Statute, "herein-
after provided".
        When we apply simple mathematics to the allocations
providedin 1;IIand III, we find that the maximum of l=#
is absorbed, and IV provides that g/10 of 1% may be allo-
cated to a distributor who likewise performs functions as
a wholesaler or jobber. This would leave 6/10 of 1% which
could be allocated to a retailer under III, If subdivision
IV becomes operative.
         We must therefore construe Section V to mean
what its literal language imports, that the l/10 of 1%
allocated to the Comptroller for enforcement purposes
is calculated upon the basis of l/10 of 1% of the taxes
collected and paid over to the State after deducting the
maximum total allocations of l&&       In other words, It is
l/10 of 1% of 98@, which is the amount of tax actually
paid over and collected by the State. If there be a
conflict between that portion of the Statute preceding
the Dhrase "as hereinafter nrovided" and what follows
this-phrase, the latter prohsion will control. cox,
et al., V. Drainage District No. 2'i'   of Craighead County,
et a1 ., lo'/S .W .2d . 887 (Sup. Crt of Ark.)
                      SUMMARY
            l/10 of 1% of the motor fuel tax
            collected and remitted to the
            State is the amount that should
            be allocated to the Comptroller
            for enforcement purposes. After
            authorized allocations are made,
            as provided in Section 2(b) of
Hon. Robert S. Calvert,   page 5 (W-309)


            Article 706513,V.A.C.S., 983%
            Is the amount of tax that is
            remitted to the State Treasurer,
            and is the amount upon which l/10
            of 1s should be calculated.

                                Very truly yours
                                WILL WILSON
                                Attorney General of Texas



                                    Assistant
LPL/fb
APPROVED:
OPINION COMMITTEE
George P. Blackburn, Chairman
John Ii.MInton,
Marietta McGregor Payne
B. H. Timins,   Jr.
REVIEWED FOR THE ATTORNEY GENERAL
By:   James N. Ludlum
