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                                July 30,1952


        Hon. Robert 6. Calvcrt                 Opinion No. V-1487
        Comptroller of Public Accounk
        Auetin, Texam                          Ret   Authority of the Comptroller
                                                     of Public Account6 to honor
                                                     niotor fuel tax refund claim6
                                                     which have been revised to
                                                     exclude those based on ex-
                                                     emption invoke6 falsified by
        Dear Sir;                                    claimant’0 boohheeper .

                  Your request for an opinion of thk office ia based on the
        following fack:

                  Your office hag received two refund claims in the amount6
        of $743.35 and $574.53, which were filed under the provkions of
        Article 7065b-l3, V. C. S. The fir& claim k for refund of tax on
        motor fuel ueed by the claimant in hi6 own farming operations, and
        the second ta for refund on motor fuel used by the estate of a de-
        ceaned perron, the farming operations of which are under the muper-
        vkion and management of the firrt claimant.

                  Attached to and flied a8 a part of the firet claim were four
        duplicate invoicee of exemption which had been falrified by altera-
        tionm of the dakr of purchase and delivery, to bring them within the
        six montha’ limiktion fixed by law for the payment of tax refunds.
        Attached to and filed a8 a part of the second claim were sfx dupti-
        cate invoiceB of exemption falrified in the mame manner and for the
        Bame parpone. All ten of the alkred invoice& of exemption were
        precluded by law from tax refund becauee deliveries, as shown by
        the date8 on the original copies of Bach exemption6 mainkined by
        the refund dealer, were made more than six month8 prior to the
        date the ciaimr were executed and filed.

                  You have been informed that both claim8 were prepared
        by an employee who keeps the books of ‘the two farming operations.
        Both claims were eubecribed and aworn to by another employee who
        ack as farm manager of the two operations.    Payment of both claims
        was denied under the provkione of mtbdivkion (f) of Article 706513-13.

                  The attorney for these claimant* har e&ted in rubstance
        that the boohheeper, not realiuiug the seriousneBB of the offenne and
        in order to avoid censure for letting the exemptions become pant due,
        had changed the dates on the exemptioau of her own volition and
Hon. Robert ~6. Culvert, Rage 2, (V-1487)
           i I: ;,, ,,: _



without the authority, direction, or knowledge of ths individnal
claimant or anyone else in the organination of either claimant, and
that neither the individual claimant nor the executor of the estate
would have condoned such act.

          On the basis of the above facts, you ask whether your
department can legally permit the claims here involved to be re-
vised to exclude the altered invoices of exemption and then pay
them in the amounts computed from the unaltered exemption in-
voices.

           The pertinent parts of Article   7065b-13.   V.C.S.,   read as
followsr

           “(a) In all refund claims filed under this section the
     burden shall be on the claimant to fur&h sufficient and
     satisfactory proof to the Comptroller of the claimant’s
     compliance with all provisions of this Articlei otherwist,
     the refund claim shall be denied.

           s(b) Any person, (except as hereinafter provided)
     who shall use motor fuel for the purpose of operating or
     propelling any stationary gasoline engine, motor boat,
     aircraft, or tractor used for agricultural purposes, or
     any other purposes except in a motor vehicle operated
     or intended to be operated upon the public highway of this
     State, and who shall have paid the tax imposed upon said
     motor fuel by this Article, either directly or indirectly,
     shall, when such person has fully complied with all pro-
     visions of this Article and the rules and regulstions pro-
     mulgated by ,the Comptroller, be entitled to reimburse-
     ment of the tax paid by him less one pe.r cent (1%) allowed
     distributors for collecting and remitting the tax and com-
     plying with other provisions of the law. . . .
           .
               . . .

          s(d) When motor fuel is ordered or pnrchased for
     refund purposes the purchaser or recipient thereof shall
     state the purposes 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 6elling refund
     dealer at the time of such delivery, or, if the motor fuel
     is appropriated for use by a refund dealer it shall be
     made out at the time the motor fuel irr appropriated or set
     aside for refund purpose,s.   The invoice of exemption shall
     state: the refund dealer’s license numberi the date of pur-
     chase and the date of deliveryi the names and addresses of
     the purchaser and the selling dealer@ the purpose for which
. ., .
         Hon. Robert S. Culvert, page ~3.(V-1487)



              such motor fuel wlll be used or is intended to be usedi the
              number of gaIlonr.delivered, or appropriated for use1 and
              any other information theComptroller~ may prescribe., No
              refund shall be allowed unless an invoke of exemption is
              made out at, the time of delivery, except as hereinafter pro-
              vided. . . .
                  ,.
                       . . .

                   s(f) Any person entitled to file claim for tax refund
              under the terms of this Article shall file such claim with
              the Comptroller on a form prescribed by the Comptroller
             within six (6) months from the date the motor fuel was de-
             livered to him, or from the date the.motor fuel was lost,
              exported or sold to the United States Government, and no
              refund of tax shall ever be made where it appears from the
              invoice of exemption, or from the affidavits or other evi-
              dence submitted, that the sale or delivery of motor fuel
             was made more than six (6) months Drier to the date the




              and closing dates of the periods covered in the r:fund
              claim filed. . . .
                   .
                       . . .

                    “It shall be the duty of every person claiming tax
              refund to ver         e contents 0    e claim filed and an
               sue: p”r’sF %othall      file cla:z   for i  refund on a<y
               mo or ue which has been used to propel a motor vehicle,
               tractor or other convevance uuon the public hishwav of
              ‘Texas for anv ourn&ePfor which a tax refund ii not au-
               thoriaed her&.     0; who shall file any duplicate invoice
              or exemption in a claim for tax refund on which any date,
               figure or other material information has been falslfled
               or altered after said duplicate invoice of exemption has
               been duly issued by the refund dealer and delivered to the
               claimant, shall~forfeit his right to’the entire amount of
               the refund claun filed.      (ISmphasis added.)

                  Under the’submitted facts the ten invoices of exemption which
         were altered involved sales or deliveries of motor fuel which were
         more. than six months prior to the receipt of the refund claim by the
         Comptroller.
                                                                                 _ . .
    Hon. Robert S. Calvert,   page 4 (V;lrSn



              There 16 no question but that the refund claims represented
    by the kn altered or falrifkd invoice6 of exemption are barred from
    payment by the six months’ limiktion provided by sktuk.       The only
    question to be determined here is the legality of paying the portions
    of the two total refund claims which were properly filed within the
    slz months’ period and which were subskntiakd’by      analtered lxx-
    voices of exemption.

              The tax refunds authorized by the Motor Fuel Tax law are
    in the nature of exemptions or exceptions and must be strictly con-
    strued. The right of the claimant to mahe application for a refund
    is statutory and the procedure set out in the statute must be strictly
    complied with to entitle the claimant to that right. Att’y Gen. Op.
    O-6363 (1945)i Armstrong v. Driscoll Construction Co., 110 P.2d
    651 (Colo. Sup.7941).

              The tax refund section of the act conkim      detailed reporting
I
    and recording provisions which were designed to prevent kz evasion,
    fraud, and the filing of stale claims and to aid in a uniform and ef-
    ficient administration of the law. The forfeiture pr.ovisions of sub-
    division (f) of Article 7065b-13, V.C.S., here involved, were only
    recently enacted by the Legislature (Section XXII of Chapter 402,
    Acts 52nd Leg., R.S. 1951, p. 695) in an obvious attempt to strengthen
    the act with regard to the filing of falsified or altered refund claims.

              In construing this statute, it is apparent to us that the clear
    intent of the Legislature was set forth in plain wording in the pro-
    vision that the claimant sshall forfeit his right to the entire amount
    of the refund claim fileds where the invoices, of sxempfionre      al-
    tered or falsified with regard to dates, figures, or other material
    information. Responsibility for the acts of the claimant’s agent or
    employee in falsifying or altering the invoices of exemption must
    be imputed to the claimant, otherwise the particular forfeiture pro-
    vision could, as a practical .matter, be circumvenkd with impunity.

             There is no statutory provision which would authorize the
    Comptroller to waive this forfeiture provision on equltable or other
    grounds and he, therefore, has no authority to do so. Att’y Gen.
    Op. V-835 (1948).

              Your request did not present any questions with regard to,
    and we are not passing upon, the possible applicability of various
    other statutory provisiozs for fines, penalties, or criminal prose-
    cution in this instance.

              It is our opinion that the person claiming the taz refunds
    in question,, which included certain altered or falsified invoices
    of szemption. forfeited his right to the entire claims which were
    filed.
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                      Hon. Robert S. Calvert, page 5 (V-1487)



                                                    SUMMARY

                                 The right of a claimant to the refund of motor fuel
                           taxes which is based in whole or in part on’altered or
                           falsified invoices of exemption must be forfeited in its
                           entirety. Art. 7065b-13(f), V.C.S.

                      APPROVED:                              Yours   very truly,

                      W. V. Geppert                          PRICE DANIEL
                      Taxation Division                      Attorney General

                      Mary K. Wall
                      Reviewing Assistant
                                                             ?izkEGk
                      Charles D. Mathews                        Assistant
                      First Assistant
