f?RICE
     DASIEL
.\,mtSEY
      GESERAL                April 28, 1947

      Hon. George H. Sheppard          opinion No. v-170
      Comptroller of Public.Acccunts
      Austin, Texas                    BE:  The refund of
                                            motor fu8l tax
                                            to one converting
                                            naphtha to light-.
                                            er fluid for mark-
                                         ., eting in small
                                           .contaQers.
      Dear Mr. Sheppard:
                  In your letter of April 9, 1947,.gcu re-
      quest the opinion of this department upon the appli-
      cation of the Gibson Products Company, Seagoville,
      Texas, for refund .of motor fuel taxes paid by- said
      concern upon naptha (ooming olearlp within the d&i.-
      nition of motor fuel) which it purchased and put up
      in ssall containers for sala as cigarette and c,igar~.
      lighter fluid.
                  seot:od~   Artiole 7065b,
                                       ... provides as            .
      follows:
                  "Any person who puro,hasesmotor
            fuel in the State of Texas, and any
            distributor who appropriate8 motor
            fuel for use when such motor fuel pur-
            chased bg such person or used by such
            distributor ior operating or propel-      .'    .~.
            lingany stationary gas engine or trac-
            tor used ior .agricultT+ralpurposes,
            motor boats, airoraft, or for any pur-
            pose other than use in a motor vehicle    .
            operated or intended to be operated in
            whole or-in part upon any of the public
            highways, roads, or streets-of the
            State of Texas, on which motor fuel tax
            has been paid, either directly or indi-
            rectly, shall be refunded the amount.of
            such taxes so paid, b' the distribqtor,
            exclusive of the one 9 1) per cent de-
            duction allowed distributors upon the
            first sale, distribution or use of said
.      .




    Hon. George H. Sheppard - Page 2   (V-170)


           motor fuel, for Collecting and remit-             ;!.
           ting the tax and for evaporation and              :.,
           other losses in the manner and subject            ~;
           to the limitations and conditions de-
           scribed herein. Provided, however,
           that no greater emount shall be refund-           ,i.:,
           ed than has been paid'into.the Treasury           'yj
           on any motor fuel. The tax actually               $$
           paid by any distributor or person shall
           be refunded-'as:pxovidedherein ~01%
                                             fac-    :
           tor fuel not subject to the tax.*
             kletily before the Gibson Products Company
'is entitled t0.a refund, it must establish its right
th8r8tOYund8r the terms of said statute. The only ba-
sis.upon~which the~'GibsonProducts Company can qualify
for a refund.ie that portion of the statute reading a6
follows:
                                                       ." .,
            n     :. or for any purpos8 oth8r
      than us: in a motor vehicle Op8Tat8d'or
      int8eded to b8 Op8I&t8d in whole.or in           '._' '.
      paasupoe any of the public highways, .                   Ed
              or streets of the Stat8 Of.Texas,     .'       %
      on which motor rue1 tax'haa been paid,
      either directly or 'indireotly. .:.,."
                  : ' '.
            Concededly, the us8 to which this concern'         ,!.
appropriates the naphtha, namely,, conv8rting it into
cigarette and cigak lighter fluid sold'in small quan-           i
titi8S iS a use for SOm8 other pUFpOS8 other th8n us8
in a motor vehicle operated or intended to be operated"         :'
inwhole or in part on any of-the public highways, &a.,
Of the State.
            We are of the opiqion that the Gibson Prod-
ucts Company is in truth the consumer aS COnt8mpk&8d,
under the statute rather than the purchaser of the mll
quantities of cigarette and cigar lighter fluid oon-
verted by the oonsum8r into these.small quantiti8S and
sold promiscudusly to the ultimate users of this fluid.
It follows that the Gibson ProduotS Company 18 entitled
t0 a refund as a qualified COnSUU8r'fOr a.purpose other
than use in a motor vehicle operated or intended to b8
operated in whole or in part upon any of the'pubdio high-
ways, roads, eto.j'of this State.'.We assume, of course,
that it has met the.'otherprov%sions of'the statute in
regard to timely filing application for refund and has
made use of the naptha,'a motor fuel; within the..time
prescribed by other provisions of the Statute. I
            .   l




Hon. George H. Sheppard - Rage 3   (V-170)




            If naphtha, a motor fuel, is con-
      verted into cigarette and cigar lighter
      fIuid and sold as the latter product, on8
      who converts such motor iU81 into such
      US8 is under the terms of Article 7065b a
      contnmef and entitled~to a reiuad as a
      consumer for us8 other than in a motor
      vehicle Operated or intended to be oper-
      ated in who18 or in part upon any Of th8
      publio highwaya, roads or streets of the
      State of Texas; provided, such con&uaer
      08I1qualify under the other provisions of
      the act in timely Presentin&?a claim for'
      r8tUd and in the tiUl81yuse of the motor
      fuel thus converted.
                                   Yours very truly
                              ATTORNEYWiNERAL     OFTRXAS




LFL/lh/wb       ' li


                              APPRUVED APRIL 28, 1947

                               2.L      a!iiiLd
                              ATTORNEY GRRERAL OF TBx4s
