Honorable Robert S. Calvert     Opinion No. C- 311
Comptrollerof Public Accounts
Capitol Station                 Fler Whether refund may be made
Austin, Texas                        of taxes paid on special
                                     fuels by a licensed non-
                                     bonded dealer or licensed
                                     non-bonded user when said
                                     special fuels have been
                                     lost by accident rather
                                     than used for the purpose
                                     of propellingmotor vehl-
                                     cles upon the public high-
Dear Mr. Calvertt                    ways of this State.
    You have requested the opinion of this office on the above
captionedmatter. The special fuels tax is levied by Article
10.03, Title 122A, Taxation-General,Vernon’s Civil Statutes.
Subdivision (1) of Article 10.03 provides, in part as followsr
         “An excise tax is hereby levied and imposed
    upon the use of special fuels for the propulsion
    of motor vehicles upon the public highways of this
    %ate at the rate of . . .I’ (Emphasissupplied.)
    Article 10.14(l), Title 122A, reads, in part,   as followsr
         “Except as otherwise provided by Article
    10.15 of this Chapter, any licensed dealer who
    shall have paid the tax Imposed by this Chapter
    upon any liquefied gas or distillate fuel which
    has been used or sold for use by such dealer
    for any purpose other than propellinga motor
    vehicle upon the public highways of this State,
          and any licensed user who shall have paid
    eaid’tax upon any liquefied gas or distillate
    cue1 which has been used by such user for any
    purpose other than propelling a motor vehicle
    upon said public highways, may file claim for
    a refund of the tax or taxes so paid, less one,
    per oent (1s) allowed suppliers for the expense
    &&llectingnand     reporting such taxea to this
          . . . .


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Honorable Robert S. Calvert, Page 2 (C-311)


     Article 10.09, Title 122A, requires that every “supplieror
dealer or user shall secure from the C$mptrollerthe kind and
class of permit required herein,_! . . _,,Cncesuch permit Is
secured, a dealer or user 1s a “licensed”dealer or user, whether
bonded or non-bonded and fs therefore within the refund provis-
ions of Article 10.1&(l) above quoted. Special fuels lost by
accident have not been used for the ,purpose"of &ropelllngmotor
vehicles upon the public highways of this State. Under the plain
and unambiguouslanguage of the Statute, the claimants in question
are entitled to the refund claimed.
     Subsection (6) of Article 10.13, Title 122A, provides as
follows:
         "When It shall appear that a supplier,
    dealer, or user to whom the provisions of this
    Chapter shall apply has erroneouslyreported
    and remitted or paid more taxes than were due
    the State of Texas upon any special fuels
    during any tax-payingperiod, either on account of
    a mistake of fact or law, it shall be the duty
    of the Comptrollerto credit the total amount
    of taxes due by such supplier,dealer or user
    for the current period with the total amount
    of taxes so erroneouslypaid, or said supplier,
    dealer or user may file claim for refund of
    the taxes erroneouslypafd, Such credit shall
    be allowed or the tax refund claim paid before
    any penalties and Interest shall be applicable.”
     Thus the Legislatureexpressly,,provided thtt when “more
taxes than were due the State .      were paid either on account
of a mistake of fact or law . . .
                                '"'suchoverpaymentsshould be
refunded. We cannot concefve of any broader grounds for allow-
ing refunds of overpayments. These broad grounds are consistent
with Legislative intent evident throughoutboth the Motor Fuels
TaaxLaw, Chapter 9, Title 122A, Vernon’s Civil Statutes, and the
Special Fuels Tax Law that the tax is imposed only when the tax-
payer has used these fuels in the operation of motor vehicles
upon the public highways of this State.
     Article 10.13 of said Title 122A pertains to reports. Sub-
division (1) deals with the reports required of every supplier,
dealer and user who make tax payments directly to the State.
Subdivision (2) deals with the monthly reports of &very supplier,
and each must report the quant$ty of epecial fuel        lost by
fire or other accident, . . . Similarly, under Subdivisions
(3) and (4) every dealer and user who has acquired special fuels


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Honorable Robert S. Calvert, Page 3(C-311)


tax free for taxable resaleK delivery or use must report monthly
the q;antity of such fuel         lost by fire or other accident,
        These provisionsare'& accord with our holding pursuant
to'A&icle 10.14(l), above, that such fuels lost through acci-
dent by any licensed dealer and any licensed user are subject
to refund.
     All non-bonded dealers and non-bonded users must pay the
tax when they acquire special fuels.  Therefore, they do not
make the reports required under Article 10.13 subdivisions(3)
and (4) wherein they would be relieved of payment of the tax on
fuel lost by accident or fire. However, on the basis of the
other statutory provisionshereinabove set forth and considered,
we are of the opinion that the Legislaturedid not mean to dis-
criminate between bonded and non-bonded dealers and users in the
payment of the tax which is imposed solely upon special fuel
used for the propulsion of motor vehicles upon the public high-
ways of this State.
                          SUMMARY
      Refund may be made of taxes paid on special fuels
      by a licensed non-bonded dealer or a licensed non-
      bonded user when said special fuels have been lost
      by accident rather than used for the purpose of
      propelling motor vehicles over the public high-
      ways of this State.
                               Yours very truly,
                               WAGGONER CARR
                               Attorney General of Texas



MMP/fb
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
W. E. Allen
Gordon C. Cass
Pat Dailey
Arthur Sandlin
APPROVED FOR THE ATTORNEY GENERAL
BY8  Roger Tyler

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