        THE      ATTORNEY             GENEXZAL
                      QF'TEXAS
                     AUSTIN   xi. -

                       March 21, 1963


Honorable Robert S. Calvert            Opinion No. C- 42
Comptrollerof Public Accounts
Austin, Texas                          Re: Whether the failure to
                                            file refund claim wlthln
                                            the time prescribed by
                                            law, Article 10.14,
                                            Chapter 10, Title 122A,
                                            V.C.S., for taxes paid
                                            on special fuels used
                                            off the Texas highways
                                            will preclude credit
                                            beingtakeqfor such
                                         '. tax payments on sub-
                                            sequenttax accruals
                                            Incurred by the user
Dear Sir:                                   and related questions.
       You have requested an opinion from this department and
In connectiontherewith have given ua the following facts:
                "A Texas motor carrier, llcensed'aaa
            user-importerof special fuels, operates
            a fleet of trucks In Interstate commerce
            on which he pays taxes to the dealer or
            seller of the special fuels and there-
            after reports and accounts for the taxes
            due on the use of special fuels on the
            Texas highways  on a~mlleage basis, I.e.,
            the.averagemlj.estraveled per gallon of
            fueJ~consuPied;~'aaprovld$d'.lnArticle
            10.08.,ofti& .1aw. . . .
                8,
                 . . .
               "This user;importerha8 a credit, over
            and above his tax accruals,  for several
            thousand.gallonsof tax paid.special fuels
            used bff the.Texas highways (In other States)
            on which he failed to file claim for tax
            refund within six (6) months from the date
            of such use, and which cannot now be refunded
            because ~of the SIX months llmltatlon above
            cited.

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Honorable Robert S. Calvert, Page 2 (NON.C-42)


             "Our first question Is therefore as
          follows:
             "When a user falls to exercise his
          right to file claim for refund of taxes
          paid, over and above his tax accruals,
          on special fuels used off the Texas hlgh-
          ways within six months from the date of
          such use, as prescribed by law, Is such
          user precluded by law from taking credit
          for such amount on subsequenttax accruals
          Incurred after the six months period for
          filing the refund claim has expired?
             8,
              . . .
             "If the Comptrollerdetermines to
          his a&tlsfactlonthat any user or other
          person~has purchased special fuels or
          motor fuel on which he Is required &
   ..~   .:law.to a Efietaxtothe sealer or seller
          attE wm-       Fhase,    and he thereafter
          uses so=fThe      ax-paid fuel off the
          public highways of Texas and falls to
          exercise his right to file for tax
          .refundwithin the time prescribed bye
          law because he did not know of the time
          limit In whlch.clalm must be filed, would
          such lgnortice of the law or mistaken
          'Ideaas to such time limit for filing
          refund claim constitute or be deemed to
          be an overpayment of taxes through a mls-
          take of law or fact as conte lated In
                                      mT:
          the above cited Article l.ll?
        The question of whether or not a refund may be paid
after the elapse of six months from the time of delivery or
use of motor fuel Is discussed In Opinions Nos. O-6086 and
O-6195 formerly rendered by this department, copies of which
are enclosed herewith.
        In Opinion No. o-6086, the claimant purchased 2,000
gallons of gasoline on January 1, 1944, from a regular licensed
dealer and obtained Invoices of exemption at the time of delivery.
Within four months he had used 1,500 gallons of the gasoline for
which he filed claims for and received refund of tax on the 1,500
gallons. On May 1, 1944, when claim was filed for refund of tax
on the 1,500 gallons, It was shown that 500 gallons Included In
the purchase had not been used. The question was as to when
the claim was barred by llmltatlonon the refund of the tax on
the remaining 500 gallons.
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Honorable Robert S. Culvert, Page 3 (No. C-42)


        The opinion held as to this question as follows:
             "Thereforewe answer to the first
          question, since the claimant purchased
          the motor fuel from a licensed dealer
          and had delivery thereof on January 1,
          1944, and since he was not a distributor
          appropriatingsuch fuel-r use, he Is
          required to use all of such fuel upon
          which he req=ts a tax refund and file
          his affldavlt and claim therefor prior
          to July 1, 1944."
        Opinion No. O-6195 holds that claim for refund of
tax on gasoline exported or lost by fire must be made within
six months from the time of delivery of the gasoline.
        These two opinions deal with motor fuel.tax under
Chapter 9 of Tltle'122A, Taxation-General,V.C.S., and this
opinion request pertains to special fuels tax as provided for
by Chapter 10 of Title 122A, V.C.S.; however, both chapters
provide that the claim for refund of taxes paid must be made
within six months from time It Is invoiced for sale or use and
for that reason we think these opinions cited are pertinent.
       'Section(1) of Article 10.14 of Title 122A, V.C.S.,
readssas~follows:
              "(1) Except as otherwise provided by
           Article 10.15 of this Chapter, any ,llcensed
           dealer who shall have paid the tax imposed
           by this Chapter upon any liquefied gas or
           distillate fuel which has beenused or sold
           for use by suqh dealer for any purpose other
           than propelling a motor vehicle upon the
           public highways of this State;/or which
           has been sold to the United States Govern-
           ment for the exclusive use of said govern-
           ment, and any licensed user who shall have
           paid said tax upon any liquefied gas or
           distillate fuel which has been used by
           such user for any purpose other than pro-
           pelling a motor vehicle upon said public
          'highways,may file claim for a refund of
           the tax or taxes so paid, less one per
           cent (1%) allowed suppliers for the
           expense of collecting and reporting
           such taxes to this State. Such claims
           shall be filed with the Comptroller on
           forms prescribed by the Comptrollerand

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Honorable Robert S. Calvert, Page 4 (No. C-42)


          shall show the date of filing and the
          period covered In the claim, the gallons
          of liquefied gas and the gallons of dls-
          tlllate fuel sold or used for purposes
          subject to tax refund, and shall show
          such other facts and Informationas the
          Comptrollermay by rule and regulation
          require. Rvery such claim shall be sup-
          ported by an Invoice or Invoices Issued
          by the claimant, 88 hereinafterprovided,
          and shall be verified by affidavit of the
          claimant and filed In the office of the
          Comptrollerwithin six (6) months from
          the date the special fuels were Invoiced
          .orrequired to be Invoiced for sale or
          use, and no claim shall be made by the
          claimant or approved by the Comptroller
          when the sale of such special fuels or
          the appropriationfor use occurs more
          than six (6) months prior to the dates .~ ~,:..
          the claim-la filed."                   .
        In accordance with these opinions we are now of the
opinion that when the user mentioned In your request falls to
exercise his right to file claim for refund of taxes paid,
withlrisix.monthsfrom the date of such use, then he Is not
entitled to a refund of those taxes; and this being true,~he
Is precluded by law from taking credit for such amount on.
subsequenttax accruals Incurred after the six-monthperiod
for fl&lng the refund claim has expired.
       Your next question relates to tax.credltsauthorized
by Article 1.11 of Title 122A which reads In part aspfollows:
           "(2) When the Comptrollerdeterminesthat
           any person, firm or corporationhas through
           mistake of law or fact overpaid the amount
           due the State on any tax collected or admlnl-
           stered by the Comptroller,the Comptroller
           may with the consent of the taxpayer credit
           the person, firm or corporationoverpaying
           the tax with the amount of such overpayment.
           "(e) Credits expire at the end bf five (5)
           years from date of Issuance by the Comp-
           troller."
        This section of the statute provides that when a per-
son, firm or corporation has, through mistake of.law or fact,
overpald the amotintdue the State, then he may be allowed


                             -182-
Honorable Robert S. C+lvert, Page 5 (No. C-42)..


credit on taxes later becoming due to the State for the
amount whlc.hhe has overpaid on prior tax accruals.
        In %he'facts glven.ln your request there has been
no overpayment of taxes. The proper amount of taxes were
paid and the user merely did not comply with the law as
required to get a refund of taxes paid and this did not
amount to an overpayment.
        This would not authorize the purchaser to take credit
for the taxes paid which might have been refunded had the pur-
chaser filed his claim In proper time, for taxes accruing on
fuel bought after the six-monthperiod had expired.
        There was not an overpayment of taxes as Intended by
Section 2 of Article 1.11 above mentioned but only taxes paid
on fuel purchased; and,when the purchaser failed to file his
claim for refund within the time prescribed by law, then any
claim for those taxes ceased to exist and the taxes accruing
on fuels purchased after the six-month period had explred Is
a separate and distinct transaction and no claim fqr credit
may be allowed on these taxes because of the failure of the
purchaser to file his claim timely In the prior transaction.


                       SUMMARY

                A user of special fuels as defined
        In Chapter 10 of Title 122A, Taxation-General,
        V.C.S., who falls to file claim for tax refund
        within six-monthperiod from date of use Is not
        entitled to take credit for such amount on sub-
        sequent tax accruals Incurred after the slx-
        month period for flllnga refund claim has
        expired. The failure of a purchasir of spe-
        cial fuels or motor fuel to file a claim for
        refund of taxes paid because he did noteknow
        of the time limit, Is not a mistake of law
        or fact such as to constitute an overpay-
        ment of taxes as provided In Article 1.11
        of Title 122A, V.C.S.
                             Yours very truly,
                             WAGGONER CARR
                             Attorney General of Texas



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 Honorable Robert S. Calvert, Page 6 (No. C-42)




 JHR:pw       '
 Enclosures
 APPROVED:
 OPINION COMMI'M'RE
 W. V. Geppert, Chairman
 0. L. Snow
 Cecii Rotach
 Murray Jordan
,,-Tobert
        Lewis
 APPR~DK'~TRRATTORNEYfX3NERAL
 By:~ Stanton Stone




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