                                                                        ‘_1   ..,   ,
I




                        Txms AmRNEy      GENERAL.
                                OF TEXAS
                                  AULVX-IN 1% T-
      WILL   WILSON
    *Tro-       caswuzAx.        September 15, 1960

     Honorable Robert S. Calvert           Opinion No. iWi-952     ,
     Comptroller of Public Accounts
     Capitol Station                       Re:     Interpretation of Art. 10.15
     Austin, Texas                                 H.B. 11, 3rd C.S., 56th Leg.
                                                   (Title 122A, Taxatlon-
                                                   General) providing excep-
                                                   tions to refunds of tax on
     bear Mr. Calvert:                             special fuels.
               Your recent letter eubmlts~the following question for
     an opinion:
                      "Do you construe Article lo.15(2)
                 to mean that the delivery of special fuels
                 into fuel supply tanks of tractors,~machlnes
                 and road construction equipment for use .l.n
                 hauling, moving and spreading dirt; gravel
                 and other materials, eupplles and products
                 on and over highway construction.jobs paid
                 for from State funds to which special fueia
                 taxes are allocated, will constitute and be
                 deemed to mean the delivery of special
                 fuels Into fuel supply tanks of motor
                 vehicles for texable use when such construction
                 job sites are not then and have not thereto-
                 fore been open to.the public for vehicular
                 travel?"

                 We answer your question in the negative.

               A tax upon special fuels Is provided for by Chapter
     10 of H.B. No. 11, 3rd C.S., 56th Leg., (Title 122A, Taxatlon-
     General). Certain terms are defined In Art. 10.01, among which
     are the following:

                 ”(5)    'Motor vehicle' m+ine any automobile3
                        truck, plckup,~jeep, station wagon,
                        bus or slmllar vehicle, propelled by
                        amotor nor Internal combustion engine
                        upon the public highways; provided, that
                        any tractor, combine, or other vehicle
                        or machine designed primarily for use
                        off the public highways shall be deemed
                        to be a motor vehicle when propelled
Honorable Robert S. Calvert, Page 2      Opinion No. WW-932


                 or serviced with special fuels for
                 propulsion, upon the public highways.
          I,. . . .

          "(10) 'Public highway' means and Includes
                every way or place of whatever
                nature open to the use of the public
                as a matter of right for the purpose
                of vehicular travel including toll
                roads, and notwithstanding that the
                same may be temporarily closed for
                the purpose of construction, re-
                construction, maintenance or repair."
          The tax Is levied by Art. 10.03, which reads in part
as follows:
          "(5)   Every user shall report and pay to
                 the State the tax, at the rate
                 imposed, on each gallon of special
                 fuels delivered by him into the fuel
                 supply tanks of motor vehicles,
                 unless said tax has been paid to a
                 licensed supplier. . . ."
          You have informed us that a contractor or user de-
livering special fuels Into the supply tanks of tractors, machines,
and road construction equipment used,ln highway construction jobs,
as in your question, is ordinarily a "Bonded User" permittee
under Art. 10.11 (1) and therefore entitled to purchase such fuel
tax free. No tax liability arises against him until the fuel Is
"delivered by him Into the fuel supply tanks of motor vehicles."
This is to be contrasted with the status of non-bonded users
(Art. 10.11(l), who are required to pay the tax upon acquisition
from suppliers (Art. 10.03(3) ).
          Provisions are made in Art. 10.14 for refunds of tax
paid In certain situations. Exceptions to such refunds are made
by Art. 10.15, as follows:
          "(1)   No tax refunds shall be paid to any
                 person on special fuels used In any
                 construction, maintenance or repair
                 work on or In connection with the
                 public highways of this State when
                 and if such work Is paid for from
                 any State funds to which special
                 fuels tax collections are allocated
                 nor Is paid jointly from any such
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       Honorable Robert S. Calvert, Page:3       Opinion No. W-932


                        State funds and Federal funds.
                 "(2)   The delivery of special fuels into
                        the fuel supply tanks of any tractor,
                        truck tractor, vehicle, or machine
                        of any kind or description for use
                        (a) Lenhauling materials, supplies
                        or products over the public hlgh-
                        ways to or from, or in connection
                        with, any highway construction,
                        maintenance or repair work, or (b)
                        for use In mowing the right of way
                        of the public highways, when such work
                        is paid for from State funds or State
                        and Federal funds as above provided,
                        shall constitute and be deemed to
                        mean the delivery of special fuels
                        Into the fuel supply tanks of
                        motor vehicles for taxable use."
                 In the situation presented by your question, no hlgh-
       way exists. There Is no IIwayor place. . .open to the use ~of
       the public as a matter of right for the purpose of vehicular
       travel. . .' It is not "temporarily closed for the purpose of
       construction, reconstruction, maintenance or repair." It has
Y..    never been opened. The machinery and road building equipment you
      :descrlbe are not propelled upon the public highways, while on the
       job site, and are therefore not "motor vehicles" wlthln the
       quoted definition. This being true, delivery of motor fuel In
       the supply tanks of these vehicles'would not constitute a taxable
       incident under the Act. However, the delivery of special fuels
       into fuel supply tanks of these vehicles to propel same on the
       highways In going to and from the job site is a taxable incident.
       As no tax has been paid by this bonded user, the "excep~tlonsto
       tax refunds" provision contained In Art. 10.15 would not affect
       him.


                                   SUMMARY

                      Under Chapter 10, Title 122a, Taxatlon-
                General, R.C.S., dellvery~of special fuels
                Into fuel supply tanks of equipment used In
Honorable Robert S. Calvert, Page 4         Opinion No. WW-932


            highway construction jobs paid for from
            State funds to which special fuels taxes
            are allocated, when such construction Job
            sites are not then and have not theretofore
            been open to the public for vehicular travel,
            does not constitute delivery of fuel into
            the fuel supply tanks of "motor vehicles",
            as defined in that chapter, for a taxable
            use.
                                 Yours very truly,
                                 WILL WILSON
                                 Attorney General of Texas


                                 Ehr
                                        es R:Irion

JRI:jlp
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Byron Fullerton
Phoclon Park, III
Robert H. Walls
Harris Toler

REVIEWED FORTHE ATTORREYGENERAL
9JT: Leonard Passmore
