Hon. Geo. H . Sheppard         Opinion   No. O-7341
Comptroller    of Public
Kccount s                     Re:    Approval by Comptroller    of a claim
riust in, Texas               for refund of tax paid on motor fuel
                              thereafter    sold by the claimant   ex tax
                              to aircraft     owners when the claimant
                              can make oath that the motor fuel was
Dear Sir:                     actually    used for non-highway   purposes?

             In your letter    of August 5, 1946, you have requested
an opinion    from this office      relative    to the above subject       and
in your letter     you have presented        two specific    questions.     The
first   of these asks whether the Comptroller             can “legally   approve
a claim for refund of tax paid on motor fuel thereafter                 sold by
the claimant     ex tax to aircraft       owners when the claimant       can make
oath that the motor fuel was actually             used for non-highway      pur-
poses.”    The second question        is conditioned      on an affirmative
answer to the first.        Specifically,      two cases have occasioned
your request     and the paragraphs       of your letter     presenting    them
are quoted:

             “In the first      case,  an airport     operator   has purchased
      large quantities      of av,iation    fuel from a licensed       refund
      dealer    in Texas obtaining       an invoice    of exemption for the
      purpose of filing       claim for refund of the tax paid by him
      as soon as the motor fuel has been used for non-highway
      purposes.     The operator,      however,    did not use all of the
      fuel   in his own aircraft       but he sold a large part of the
      fuel to various      other ai-craft      owners who fueled      their
      planes at his field.          In this instance      the airport    opera-
      tor contends     that he did not collect         the tax from the
      purchasers    as he resold      the fuel although       the records
      show that the profit        he added to the original        cost of the
      fuel was more than enough to cover twice the amount of the
      tax paid.

             ‘IIn the next case,     a municipal    airport    located  on
      property    owned by a city in Texas likewise           claimed refund
      of tax paid on motor fuel thereafter           sold to various      air-
      craft    owners who stored     their  planes in the airport       hang-
      XL-S.    In this instance     the operator    of the airport     col-
      lected    a $Uorage fee from the airplane         owners but the fuel
      sold to such owners was sold at actual            cost after deduct-
      ing the 46 tax.       In other words,     aviation    fuel that cost
      18q? per gallon     including    tax was sold at 146 a gallon
      (Hypothetical     figures)    to said aircraft     owners and the
Hon.   Geo.   H. Sheppard,   page 2     (O-.7341)


       municipal  alrport    claimed   the   refund   instead   of
       the actual users”

               The motor fuel tax   a refund   of which is here         in *es-
tion,   is    imposed by Article  $065b, Section   2a, V. A.C.S.        which
provides      in part as follows:

              “There shall be and is hereby levied          and imposed
       (except    as hereinafter     provided)   upon the first   sale,
       distribution,     or .ISF: of motor fuel    in this State an
       occupation    or excise    tax c,: Four (4) cents per gallon
       or fractional     part thereof     so sold,  distributed,   or
       used in this State,       * * *

              I1 * * * In each subsequent   sale or distribution
       of motor fuel upon which the tax of r’o~r (4) cents
       per gallon    has been collected,  the said tax shall be
       added to the selling    price I so tha.t such tax is ul-
       timately    paid by the person using or consuming said
       motor fuel for the purpose of generating       power for
       the propulsion    of any motor vehicle    upon the public
       highways of this State,”

               Clearly,    under the term of this statute,            the tax imposed
thereby     is to be passed on to subsequent            purchasers     and is to be
paid ultimately         by the user or consumer.          It follows    that any ex-
emption from the tax should inure to the benefit                   of the user or
consumer and that any refund thereof              must relate      directly   to the
use or consumption         of the motor fuel on which the tax has been
paid.     This is recognized        in the provisions       for a refund of this
tax following       in Section    13 of this same kticle           7065b.    It is
not deemed necessary          to quote at length from, nor analyze in de-
tail,    all of the provisions        of this    section.      Suffice    it to say
that the intendment of the entire             section     and of each of its sub-
sections      is that the claim for a refund of motor fuel taxes shall
be made only by the user or consumers and that no refund shall be
made unless       such user or consumer purchased            the motor fuel from a
 “refund    dealer”     as provided0

              This section     13 providing    for refunds      operates  as an ex-
 emption to motor fuel taxes generally            imposed.      As such it should
 be strictly      construed  and the burden is on the one claiming            an
 exemption     from taxes to bring himself        clearly    within   the statute.
 (See Methodist       Church v. City of San Antonio,         201 S.W. 669).      Ex-
 emption from taxation       is never favored       and in construing     laws
 exempting     any citizen   or class    of property,     all doubts are resolved
 against    the exemption.      (See Santa Rosa Infirmary         v. City of San
 Antonio,    259 S.W. 926) o
Hon.   Gee.   H. Sheppard,     page    3   (O-7341)


             The section    is an integrated       statute    devoted mostly to
procedures    for obtaining      refunds     of the kind here in question.
By its terms (see subsection            a) the refunds    authorized     are to be
made “in the manner and subject            to the limitations      described   here-
in.”    The procedures     prescribed      are of the essense      of the statute
and a compliance      therewith     is a condition     precedent     to the right
to the refunds     that it authorizes.          d “refund   dealer”    is defined
and (in subsection       b) the sale of motor fuel         on which a refund of
the tax may be authorized         by anyone without       a refund dealer’s
license    is prohibited    and made a misdemeanor.           Throughout the
statute    it is manifest     that a claim for a refund is to be made by,
and any refund paid thereon           is to be paid to, the actual u.ser or
consumer.

               There is no standard provided             nor any reason found for
permitting      any exception      to the above requirements.             This is sup-
ported by several        considerations.         First,     the applicable      rules   of
construction       above mentioned       require    a strict     compliance     with the
procedures      prescribed      in the statute.         Second,    under the princi-
ple of departmental         construction,       the long continued        policy    of
the Comptroller’s        Department in requiring            airports    and boatdocks
desiring     to sell motor fuel to private              owners,    to secure a refund
dealer’s     license    would resolve       any possible       doubt as to the in-
stant cases.         knd third,    there is the cogent reason that any ex-
ception    could be extended to other sellers                 in the course of dis-
tribution      or enlarged     upon through the sale of increased               quanti-
ties until      the very purpose of the statute              would be defeated.

             The foregoing   considered,      it is the opinion   of this
office   that the Comptroller     may not le ally approve a claim for
a refund of motor fuel taxes Iunless (1 ‘i the claimant was the ac-
tual user or consumer of the motor fuel and (2) the claimant
purchased     such motor fuel directly      from a licensed   refund dealer.
This negative     answer to your first      question   makes an answer to
the second unnecessary.       It may be noted that the price         at which
the fuel    is sold does not affect      the procedure    for claiming    a re-
fund.

           kccordingly,    you are advised             that in the cases presented
the claims filed    by persons  other than             the user or consumer may
not be approved.

APPROVEDSEP 11, 1946                             Yours very truly
/s/  Grover Sellers                              ATTORNEYGENERALOF TEXAS
ATTORNEYGENERALOF           BY                   /s/  Jackson Littleton
TEXAS                                            Jackson Littleton,     Assistant
APPROVED: OPINION COMMITTEE
BY:        BWB, CHAIRMAN
JL: JMc:wb
